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Friday, July 7, 2000

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Court asked to declare OHA unconstitutional

Twenty-one people file a motion
to intervene before the state high
court on the Rice decision

By Pat Omandam


The Office of Hawaiian Affairs should be declared unconstitutional by the Hawaii Supreme Court in the wake of the Rice decision, says attorney H. William Burgess.

Or at the very least, the board's nine trustee seats should be immediately vacated, he said.

Burgess -- who in the past has challenged the constitutionality of OHA because it was created based on racial classifications -- filed a motion to intervene before the state high court yesterday on behalf of himself and 20 others who believe the Feb. 23 decision by the U.S. Supreme Court in the Rice vs. Cayetano case proves the Hawaiian agency is illegal.

The petitioners, who include former Honolulu Advertiser owner Thurston Twigg-Smith, a descendant of a leader of the 1893 overthrow of the Hawaiian monarchy, want the Hawaii justices to allow them to take part in a joint motion filed by OHA and the state that seeks clarification of the status of sitting trustees.

OHA believes the Rice decision, which opened OHA elections to all voters in Hawaii, was a narrow ruling that did not affect the status of trustees. Gov. Ben Cayetano believes the ruling created immediate vacancies on the OHA board. Both sides agreed to seek clarification from the Hawaii Supreme Court.

Burgess said yesterday the group filed the motion because they felt OHA and the state are attempting an "end-run" around the Rice decision, which they believe now opens up OHA races to candidates of all ethnicity.

"They're asking this court to validate infringements on the rights of citizens to constitutionally guarantee rights of citizens to vote and hold office," Burgess said.

"And the state, by refusing to address properly the issues that are raised by the U.S. Supreme Court in Rice vs. Cayetano, was sanctioning what amounts to apartheid in these islands," he said.

Ideally, Burgess said, the petitioners want the court to rule OHA unconstitutional. But if the justices don't address that issue, they hope they will at least rule there are nine vacant seats on the OHA board and that anyone can run for OHA, Burgess said.

"The Rice decision basically says that all people can vote in OHA elections regardless of race. Now that right would be empty if the candidates for office were restricted based on race."

Legal advisers for the state and OHA, however, don't buy into that argument. State Attorney General Earl Anzai told reporters yesterday Burgess is reading too much into the Rice decision. Attorney Robert G. Klein, a retired Hawaii Supreme Court associate justice who is OHA's legal counsel on this matter, said the petitioners concerns are already covered within the joint motion.

"We raised the issues, jointly, with the attorney general's office," he said. "Mr. Burgess didn't participate in defining the issues that we felt were relevant."

Klein added the issue of OHA's constitutionality is unrelated to this case. Moreover, that issue cannot be raised directly through a motion to intervene at the high court, as Burgess is attempting to do. Rather, it must go through the normal legal process, which is to file a motion for a declaratory judgment in Circuit Court.

But Klein said he suspects Burgess is making more of a political point than anything else.

"It's a political opportunity, not a real legal one," he said.

Bullet U.S. Public Law 103-150
Bullet OHA Ceded Lands Ruling
Bullet Rice vs. Cayetano
Bullet U.S. Supreme Court strikes down OHA elections
Bullet Office of Hawaiian Affairs

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