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OHA ruling
in Rice suit may
come next week
Three trustees want the board
By Pat Omandam
to hold an emergency meeting
to plan to protect its assets
Star-BulletinAn opinion by the U.S. Supreme Court on the Rice vs. Cayetano case could come as early as next Tuesday, says former Office of Hawaiian Affairs Chairwoman Rowena Akana.
That news prompted Akana and two other OHA trustees to ask Chairman Clayton Hee to call for an emergency board meeting to discuss ways to protect the agency's trust assets if the court rules against OHA.
Akana said she was told yesterday by sources at the "very highest level of government" in Washington, D.C., that a ruling on the controversial OHA voting case could come Tuesday.
Tuesday is a day of argument for justices -- and a time when they could issue an opinion on the Rice case, says Jon M. Van Dyke, a University of Hawaii law professor and one of the Hawaii attorneys representing the state in the case.
Van Dyke explained a ruling on Big Island rancher Harold "Freddy" Rice's appeal of racial discrimination in OHA elections will depend on how divided the nine-member high court is on the issue.
He said there's every reason to think the high court is divided, based on the wide range of viewpoints found in their questioning during oral arguments last Oct. 6.
Van Dyke said an opinion could be issued as soon as Tuesday -- or months from now.
The justices, he said, have issued some opinions on cases that have been argued after Rice, but there are others that won't be decided until the end of June, when the Supreme Court term is up.
"So, we'll wake up one morning and it'll have been decided," Van Dyke said.
State Deputy Attorney General Girard Lau, who is the state's attorney of record in the case, said yesterday there is no warning from Supreme Court justices or law clerks that a ruling is being released. Rather, parties to the case are notified afterward, he said.
Lau said the justices could theoretically rule next week, but there has been no indication they will.
Trustees Mililani Trask and Louis Hao, along with Akana, have asked Hee for an emergency meeting so the board can take action to protect its trust. OHA's investment portfolio was valued at $355 million as of Dec. 31, 1999.
The three trustees said the board has failed to take any preventive measures to protect the trust even though it has been warned "great harm will come" if nothing is done.
The trio wants the board to file a lis pendens (pending lawsuit) against the state and the federal governments for breach of trust responsibilities on behalf of their beneficiaries so they can protect the trust in the worst-case scenario.
Every trustee who fails to take action will be liable if the trust assets are placed in jeopardy, they said.
Akana said she personally fears the state will push for an appointed board if the justices rule the OHA elections are unconstitutional.
And the state could even take over the agency's trust as a precaution, she said.
Gov. Ben Cayetano earlier this week said the state was facing a tough fight in the high court, based on opinions he has read on the case by law professors across the country.
He has asked the attorney general's office to come up with a contingency plan if the state does not prevail.
Rice vs. Cayetano
OHA Special
