A federal appellate court has upheld a ruling that allows non-Hawaiians to run for the Office of Hawaiian Affairs. Non-Hawaiians’ right
to run for OHA upheldThe federal appeals court ruling
does not address discriminationBy Pat Omandam
pomandam@starbulletin.com
Even so, attorney Sherry Broder, who represents OHA but is no longer its board attorney, said the opinion is a good thing for the agency. "I see this as helpful to the Office of Hawaiian Affairs and the other litigation that's going on," she said, referring to lawsuits charging the agency with racial discrimination.
The 9th U.S. District Court of Appeals, in a 16-page decision yesterday, affirmed U.S. District Judge Helen Gillmor's September 2000 ruling that OHA elections violated the 15th Amendment of the U.S. Constitution and the Voting Rights Act. Former state Attorney General Earl Anzai appealed the decision.
But the appeals court said the plaintiffs did not have standing when Gillmor also ruled the Hawaiian-candidates-only restriction violated the equal protection or racial discrimination clause of the 14th Amendment. As a result, the appeals court removed that portion of her ruling.
That is important to OHA and state attorneys, who are defending OHA and the Department of Hawaiian Home Lands from ongoing lawsuits that claim their programs discriminate by race.
Since the appeals court fell silent on these issues, its decision yesterday did not place an additional burden on defending those cases, said Charlene Aina, a state deputy attorney general.
"What's important is ... this clarification that the 9th Circuit gives us. In so many words, the 14th Amendment challenge is yet to be decided with respect to the native Hawaiian programs in OHA and the Hawaiian Homes Commission Act," Aina said.
Broder said the 9th Circuit is scheduled to hear oral arguments Jan. 14 on appeals of U.S. District Judge David Ezra's rulings that Patrick Barrett and Republican political candidate John Carroll lacked standing in their separate equal-protection challenges to Hawaiian programs.
Pending before U.S. District Judge Susan Mollway is a 14th Amendment challenge to Hawaiian programs brought by 16 multiethnic plaintiffs whom Mollway has ruled have standing as state taxpayers. The plaintiffs in that case are mostly the same as those in the OHA trustee candidacy case.
Gillmor's ruling opened the way for non-Hawaiians like Charles Ota, of Maui, to run for and win a special two-year seat as trustee of the OHA board in the 2000 elections.
Ota's term expired last fall and he did not seek re-election. Ota said after having served as trustee for two years, he believes a person of Hawaiian ancestry is better suited for the job.
No other non-Hawaiian since has won a seat as trustee.
"The state government should not spend money practicing and defending discrimination," said retired attorney H. William Burgess, co-counsel who represented the 13 plaintiffs in the case, including Kenneth Conklin, the first non-Hawaiian to file papers to run for OHA. "It should not divide us by race."
Burgess said yesterday the 9th Circuit rejected state arguments the OHA candidacy restrictions were not "racial" in nature. He added the court noted the U.S. Supreme Court's Rice vs. Cayetano decision as having invalidated the entire OHA voting scheme.
The Associated Press contributed to this report.
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