Hawaiian program
suit delayed againThe postponement will provide
more time to review a recent ruling
A federal court judge again delayed a hearing in a lawsuit challenging the constitutionality of native Hawaiian programs, an action that apparently frustrated the plaintiffs' attorney.
"When is this case ever going to move forward?" asked H. William Burgess. "I'm just getting exasperated. The plaintiffs are getting exasperated."
The hearing was scheduled to be heard June 16 but was postponed until yesterday after Burgess's co-counsel, Patrick Hanifin, died while recovering from heart surgery. Burgess also noted that one of the plaintiffs, Roger Grantham, also has died. The suit was filed March 4, 2002.
"Few of us will be alive when the outcome is decided," Burgess said.
U.S. District Judge Susan Oki Mollway scheduled a Nov. 17 hearing to address the possibility of the federal government requesting removal as a defendant in the Arakaki vs. Lingle lawsuit. The hearing also will determine whether a 9th Circuit Court of Appeals decision to uphold U.S. District Judge David Ezra's dismissal of two lawsuits challenging Hawaiian entitlements has any impact on the Arakaki lawsuit.
Mollway said she wanted to make sure that all parties, including the federal government, had time to look over the appeals court ruling.
After the conference, Office of Hawaiian Affairs Chairwoman Haunani Apoliona said nobody could have foreseen the deaths of Hanifin and Grantham. She commended Mollway for handling the case in a prudent manner.
"It appears that she wants to proceed with an abundance of caution and to make sure no element is left un-addressed," she said.
Mollway dismissed the federal government from the lawsuit in September 2002, when she ruled that the plaintiffs have standing only as state taxpayers and that the outcome could only affect issues at the state government level. Mollway, however, reinstated the federal government Friday after the appeals court ruling, saying it should be a defendant in the suit that challenges the constitutionality of native Hawaiian programs.
Sixteen Hawaii residents in the Arakaki suit are challenging the legality of the Office of Hawaiian Affairs and the state Department of Hawaiian Home Lands, alleging their programs are race-based and discriminate against non-Hawaiians.
During a telephone conference call to the court, Roger Martella, an attorney with the U.S. Justice Department, said he does not believe that the appeals court ruling changes anything and that it was "very likely" the federal government will file a motion seeking to be dismissed from the suit.
More than 50 people protested near the federal court building in support for Hawaiian entitlements and programs before the conference started.
Tony Sang, chairman of the State Council of the Hawaiian Homestead Association, said, "This is a peaceful demonstration to make people aware of our pilikia (trouble)."
The Hawaiian Homes Commission Act set aside 200,000 acres for native Hawaiian homesteads. The state had agreed to adopt the Hawaiian Homes Commission Act as part of its Constitution when Hawaii became a state in 1959. Under the Constitution, the state agreed that one of the purposes of the public land trust would be to improve conditions for native Hawaiians.
The Associated Press contributed to this report.
