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Ernestine Ching v. City and County of

March 22, 2011

ERNESTINE CHING YOUNG, INDIVIDUALLY; ERNESTINE C. YOUNG, TRUSTEE OF THE WALLACE L. YOUNG TRUST DATED APRIL 12, 2005 RESIDUARY TRUST; JAMES M. SHERMAN, AKA JAMES MALCOLM SHERMAN; AKIKO S. SHERMAN, TRUSTEES UNDER THAT CERTAIN UNRECORDED JAMES M. SHERMAN AND AKIKO S. SHERMAN REVOCABLE TRUST, AKA AKIKO SAKIYAMA SHERMAN; JAN CAMILLE BELLINGER, TRUSTEE OF THE JAN CAMILLE BELLINGER REVOCABLE LIVING TRUST, UNDER THAT CERTAIN UNRECORDED TRUST AGREEMENT DATED NOVEMBER 23, 1993; DAVID PATRICK KELLY;
KEIKO KELLY; FREDERICK AHN; JMS-LEK MYRNA P. CHUN-HOON, SUCCESSOR TRUSTEE UNDER THAT CERTAIN UNRECORDED REVOCABLE TRUST OF ALBERT C.K. CHUN-HOON DATED OCTOBER 11, 1984, AS AMENDED; MYRNA P. CHUN-HOON, TRUSTEE UNDER THAT CERTAIN UNRECORDED REVOCABLE TRUST OF MYRNA P. CHUN-HOON DATED OCTOBER 11, 1984; STUART EDWIN GROSS, TRUSTEE UNDER THAT CERTAIN UNRECORDED TRUST AGREEMENT OF STUART E. GROSS DATED FEBRUARY 19, 1985; MARCIA KURZWEIL GROSS, TRUSTEE UNDER THAT CERTAIN UNRECORDED TRUST AGREEMENT OF MARCIA K. GROSS DATED FEBRUARY 19, 1985; RANDY NEIL YEAGER; SUSAN KAYCIE YEAGER; KENNETH GRAHAM PATTERSON; LILLIAN PAPACOLAS PATTERSON; ELAINE N. MIN, TRUSTEE UNDER THAT CERTAIN TRUST AGREEMENT DATED APRIL 9, 1985, AKA ELAINE NAM MIN; ARTHUR R. KING, JR.; RUTH MILDRED KING, CO-TRUSTEES OF THE UNRECORDED ARTHUR R. KING, JR. TRUST AGREEMENT DATED MAY 18, 1990, AND CO-TRUSTEES OF THE UNRECORDED RUTH MILDRED KING TRUST AGREEMENT DATED MAY 18, 1990; LAWRENCE REICH; JOYCE ANDREA HAGIN; PAUL JOHN CASEY, TRUSTEE UNDER THAT CERTAIN UNRECORDED SELF-TRUSTED TRUST DATED AUGUST 31, 1987; JANICE YOKO CASEY, TRUSTEE UNDER THAT CERTAIN UNRECORDED SELF-TRUSTED TRUST DATED MAY 20, 1988; GEORGE HENRY LUMSDEN; JOANN CHUN LUMSDEN; ANN TAKAKO YAMAMOTO, TRUSTEE OF THE SELF-TRUSTED TRUST AGREEMENT OF ANN TAKAKO YAMAMOTO, UNDER UNRECORDED TRUST AGREEMENT OF ANN TAKAKO YAMAMOTO, DATED APRIL 10, 2000; DONALD ARTHUR CLOTHIER; CHRISTINE ADELE SERAFIN- CLOTHIER; FRANCES M. WATANABE, TRUSTEE UNDER THAT CERTAIN UNRECORDED FRANCES M. WATANABE REVOCABLE TRUST DATED APRIL 2, 1993; JACQUELINE LEE SUSIE EARLE, TRUSTEE UNDER THAT CERTAIN UNRECORDED JACQUELINE L.S. EARLE TRUST DATED JUNE 30, 2004; GAIL SUZANNE KOGLMAN; NEIL SIMMS BELLINGER, INDIVIDUALLY, AND AS TRUSTEE UNDER THAT CERTAIN UNRECORDED NEIL S. BELLINGER REVOCABLE LIVING TRUST DATED NOVEMBER 20, 2002, PLAINTIFFS-APPELLANTS,
v.
CITY AND COUNTY OF HONOLULU, DEFENDANT-APPELLEE. KATHLEEN M. BARR, TRUSTEE OF THE SALLY A. MATSUDA SELF-TRUSTEED TRUST DATED OCTOBER 15, 1993; RALPH JAMES MITCHELL; LUCY MITCHELL; NOOSHA FESHARAKI; EARL KIDDER; JEENIE MARIE KIDDER; JAMES RAPISARDA; JONATHAN VON BRANA; THOMAS PRESTON; LOREN HOHMAN; HERBERT CAPLAN, CO-TRUSTEE OF THE HERBERT CAPLAN AND ELENA V. PECILE TRUST DATED MARCH 27, 2003; ELENA PECILE, CO-TRUSTEE OF THE HERBERT CAPLAN AND ELENA V. PECILE TRUST DATED MARCH 27, 2003; WILMA PARKER, TRUSTEE OF THE WILMA I. PARKER TRUST DATED MARCH 16, 1989 AS AMENDED; TROY WILLIAMS; LARRY WEISNER; DELORES WEISNER; MARIANNE MARION JAEGER; RICHARD JOHNSON; WILLIAM GARRETT FUSON; KANG YUK LEE; SUK JA LEE; CLAUDE ROTHE, TRUSTEE OF THE CLAUDE R. ROTHE LIVING TRUST DATED MARCH 26, 1998; ALVIN OLSON, TRUSTEE UNDER ALVIN R. OLSON REVOCABLE TRUST AGREEMENT DATED JULY 20, 1998; NATALIA INDRASARI; DAE-LEK WARREN SWEET, TRUSTEE OF THE SWEET JOHN REVOCABLE TRUST DATED JUNE 21, 1991; RHEBA ALICE SWEET; ROBERT MEHRING; AYUMI WATANABE MEHRING; MARIANA FLEMMINGS, CO-TRUSTEE OF THE ARNOLD THEODORE FLEMMINGS AND MARIANA FLEMMINGS REVOCABLE LIVING TRUST DATED DECEMBER 6, 1999; ARNOLD FLEMMINGS, CO- TRUSTEE OF THE ARNOLD THEODORE FLEMMINGS AND MARIANA FLEMMINGS REVOCABLE LIVING TRUST DATED DECEMBER 6, 1999; MELVIN TAKEO MATSUOKA; DELWIN SCHNEIDER, TRUSTEE UNDER THE DELWIN BYRON SCHNEIDER AND KATHERINE LOUISE SCHNEIDER FAMILY TRUST DATED OCTOBER 14, 1996; KATHERINE SCHNEIDER, TRUSTEE UNDER THE DELWIN BYRON SCHNEIDER AND KATHERINE LOUISE SCHNEIDER FAMILY TRUST DATED OCTOBER 14, 1996; RONALD SILVERMAN; FARHAD SIMYAR; FRANK WINSTON KERN; SOUSSAN SIMYAR; RICHARD L. JAEGER, PLAINTIFFS-APPELLANTS,
v.
CITY AND COUNTY OF HONOLULU, A MUNICIPAL CORPORATION OF THE STATE OF HAWAII, DEFENDANT-APPELLEE.



D.C.No.1:07-cv-00068; D.C. No.1:05-cv-00125. Appeal from the United States District Court for the District of Hawaii J. Michael Seabright, District Judge, Presiding David A. Ezra, District Judge, Presiding

The opinion of the court was delivered by: Judge O'Scannlain

FOR PUBLICATION

OPINION

Argued and Submitted August 13, 2010-Honolulu, Hawaii

Before: Diarmuid F. O'Scannlain, A. Wallace Tashima, and Milan D. Smith, Jr., Circuit Judges.

Opinion by

COUNSEL

OPINION

O'SCANNLAIN, Circuit Judge

We are called upon to decide whether the City of Honolulu violated the Contracts Clause of the United States Constitution when it repudiated several agreements to convey property to private citizens in connection with its leasehold conversion program.

I

A

In 1991, the City and County of Honolulu (the "City") enacted an ordinance, later codified at Chapter 38 of the Revised Ordinances of Honolulu ("Chapter 38"), which created a mechanism allowing condominium lessees to convert their leasehold interests into fee interests through the City's power of eminent domain.*fn1 As we have previously explained, Chapter 38 was a response to Hawaii's long history of feudal land ownership, which survived well after American acquisition. At the time of Chapter 38's enactment, a small handful of landowners owned the vast majority of land in the State. Despite the efforts of Hawaii's leaders to divide these large Hawaiian land estates, the system persisted, driving the price of land in Hawaii to exorbitant heights. Taking advantage of this status quo, Hawaiian landowners ...


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