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THE state Supreme Court's clumsy sidestep on the legal status of the Office of Hawaiian Affairs trustees cements Hawaii's reputation as a state that can't seem to do anything right. Court that couldn’t
rule straightIn its Rice vs. Cayetano ruling in February, the U.S. Supreme Court made clear that OHA elections in which only Hawaiians could vote were unconstitutional and that current trustees were elected illegally. Unfortunately, the court provided no guidance on what to do next.
Gov. Ben Cayetano tried to remove the trustees and appoint his own replacements. He was right that the trustees had to go, but his eagerness looked like political opportunism when he talked of the trustees' "dysfunction" as much as the court's mandate.
The trustees fought to retain power and won the public opinion war. It seemed to make sense to let them mind the store until orderly elections could be held in November in compliance with the Rice decision. Now, thanks to the state court's inaction, those elections are in chaos.
The Hawaii Supreme Court became involved when Cayetano and OHA chairman Clayton Hee tried to calm the public furor by jointly asking the state court to decide whether the Rice ruling had invalidated previous OHA elections and created vacancies on the OHA board.
The question seemed a simple enough. But as state election officials waited to make their preparations for November, justices sat on the case for five months without answering. When they finally did rule this week, they essentially took a pass on the grounds that the state hadn't filed the correct paperwork with the court.
If that was the case, why didn't the court raise the procedural issue at the start so the case could be decided in time for orderly November elections? Are the justices staging a work slowdown to protest the low pay they complain about at the Legislature each year?
As the state scrambles to file new paperwork in court, OHA candidates face a Friday filing deadline without knowing if all nine seats will be up for election to comply with the Rice ruling or just the four seats whose terms expire this year.
Further complicating the election is another case moving through the federal court seeking to enforce the right of non-Hawaiians to run for the OHA board.
Unless the state court acts more quickly than it seems inclined to do or the trustees give up their fight, it's probably too late to get all nine OHA seats on the November ballot.
THAT means the governor instead of voters will choose trustees for any seats vacated by the court after the election. An even more disturbing prospect is that five trustees will retain seats they illegally hold until the 2002 election.
This needs to be resolved soon. Beyond the embarrassing ineptitude, it looks like we're dragging our feet in enforcing the Rice decision just as Congress is working on legislation to protect special programs benefiting Hawaiians.
Cayetano is right that the future of OHA, the Hawaiian sovereignty movement and all federal programs for Hawaiians are in danger unless we obey the U.S. Supreme Court quickly and clearly.
In a side opinion, state Supreme Court Justice Simeon Acoba said OHA trustees should accept that they'll ultimately be removed and work on an orderly transition for the good of OHA without further court battles.
It's a shame that he and his fellow justices didn't have the vision to clean up that piece of business while they had the chance.
David Shapiro is managing editor of the Star-Bulletin.
He can be reached by e-mail at dshapiro@starbulletin.com.
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