Friday, March 30, 2001

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No-injury claims
delay court action
in anti-OHA suit

Lawyers for Hawaiian
programs maintain the plaintiff
has no standing in the case

By Pat Omandam

A court hearing in late May to stop the operations of the Hawaiian Homes Commission and the Office of Hawaiian Affairs has been canceled to allow the parties to first argue whether plaintiff Patrick Barrett has legal standing to file his lawsuit.

William S. Helfand of Houston, lead counsel for Barrett, said yesterday he has withdrawn Barrett's motion for a preliminary injunction hearing so he could address motions filed by lawyers of the commission and OHA, who contest Barrett's standing in court.

A hearing on the motion to stop the work of the commission and OHA was scheduled for May 27 before Federal Chief Judge David Ezra. At a status conference with Ezra earlier this week, the parties agreed to first address claims that Barrett, 53, of Moiliili, has no standing in the case because there was no controversy and because the defendants caused him no injury.

Barrett filed his lawsuit last October.

"So we agreed that the best thing to do was, let the judge take a reasoned and deliberate approach to the motions right there now and, once those are resolved, to ask him to look again to the preliminary-injunction issues," Helfand said in a telephone interview from Texas.

Helfand hopes the injunction hearing can be rescheduled as early as late June or early July.

Hawaii attorney Robert Klein, who represents Hawaiian homesteaders in the Barrett lawsuit, said yesterday the judge gave Helfand more time to respond to the motions. The homesteaders filed a motion for summary judgment against Barrett because they claim he has not suffered in any way as a result of the commission, Klein said.

The retired Hawaii Supreme Court associate justice said Barrett filed his lawsuit 25 days before the state Department of Hawaiian Home Lands received his application for a homestead, and therefore it could not have caused any injury to him at the time the suit was filed.

OHA filed a motion to dismiss the case almost on the same grounds. Attorney Sherry Broder, OHA board counsel, said Barrett applied for a loan from a federally funded OHA program, but the application was returned to him for further information. Instead of reapplying, Barrett sued.

"He never resubmitted it," Broder said. "So there's no controversy because there's been no completion of his application. Courts don't give advisory opinions."

Nevertheless, Helfand said he remains "dead set, absolutely confident" these motions will be denied and Ezra will reschedule the preliminary injunction hearing. Those who filed the motions have an apparent misunderstanding of what the U.S. Supreme Court said in its ruling on Rice vs. Cayetano, he said. That ruling struck down the Hawaiians-only restrictions to run and vote in OHA elections.

"The fact they don't seem to understand the Supreme Court precedence in this area is not at all surprising," Helfand said.

"It isn't what you say it is; it is what the Supreme Court says it is. And Mr. Barrett clearly is a person who has standing."

Meanwhile, state Deputy Attorney General Girard Lau said the state has agreed to pay Theodore Olson, a Capitol Hill attorney and U.S. solicitor general nominee, $1.05 million in fees for his work in the Rice appeal before the high court. Local attorney John Goemans is appealing his $150,000 fee awarded to him by the federal district court.

OHA Special

Rice vs. Cayetano arguments

Rice vs. Cayetano decision

Holo I Mua: Sovereignty Roundtable

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