Lawyers want to Attorneys for a man who challenged the constitutionality of state programs for Hawaiians have asked federal District Chief Judge David Alan Ezra to reconsider a portion of his July 12 ruling that dismissed the case.
revisit Barrett ruling
A judge erred in not giving the
U.S. time to intervene, they sayBy Pat Omandam
pomandam@starbulletin.comLocal attorney Patrick W. Hanifin and Texas attorney William S. Helfand, in a July 19 motion, said Ezra was mistaken when he dismissed Patrick Barrett's claims concerning the Hawaiian Home Lands program.
Judge Ezra ruled Barrett had no standing because there was no way for the court to offer redress.
He said the court could not remedy Barrett's claims of injury because the native Hawaiian ancestry requirement to qualify for a Hawaiian homestead is a federal law and one that the court cannot strike down if the United States was not a party to the case.
But Hanifin, in an eight-page reconsideration motion, contends the federal court is obliged to notify the U.S. attorney general and give the United States the option to intervene.
Hanifin respectfully called Ezra's summary judgment that dismissed the motion a "manifest error of law."
"The proper procedure is to notify the United States, allow it to intervene, and to allow Barrett to join the United States as a party if it does not intervene," Hanifin stated in the motion.
"That will make it possible to redress Barrett's injury. Thus, Barrett has standing."
Barrett originally challenged the constitutionality of Article XII of the Hawaii state Constitution. That section created the Hawaiian Homes Commission, the Office of Hawaiian Affairs and established native Hawaiian gathering rights.
Barrett's complaint against OHA was for the right to compete for a start-up business loan to open a copying business. But he did not complete the OHA application process. As a result, Ezra ruled Barrett did not have standing to challenge the business loan program because he could not show he would benefit from such a loan.
Ezra also ruled Barrett did not have standing to challenge native gathering rights because he admits he never has attempted to gather and has no plans to do so.
Attorneys for the state, OHA, Hawaiian Homes and native gatherers filed their responses this week to Barrett's motion for consideration.
It will be up to Ezra to decide whether to take up the matter.
Most expect the issue over government entitlements for native Hawaiians will continue to be challenged in court in the wake of the U.S. Supreme Court ruling in the Rice vs. Cayetano case.
The high court struck down the Hawaiians-only voting restriction for the OHA election and has opened the door for other challenges to native programs.