Hawaiian rights
suit rulings
are due soon

Judge Ezra says his
decisions on motions
won't affect the merits

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By Pat Omandam
pomandam@starbulletin.com

U.S. District Chief Judge David Ezra is expected to rule by mid-July on whether plaintiff Patrick Barrett can proceed with his lawsuit seeking equal access to government benefits now provided only to native Hawaiians.

Ezra, however, stressed his upcoming rulings on three "extremely technical but extremely important" jurisdictional motions heard yesterday before a standing-room-only courthouse will not decide the complex issue.

"It is simply not a challenge on the merits of the case," Ezra said after a 90-minute hearing.

Barrett wants to amend his original Oct. 3 complaint, which stated the Office of Hawaiian Affairs and the Hawaiian Homes Commission are unconstitutional, to one that allows him equal access and treatment of benefits provided to Hawaiians by these agencies.

OHA and the State Council of Hawaiian Homestead Associations are seeking separate motions to dismiss Barrett's complaint.

OHA board counsel Sherry Broder argued the case should be dismissed because Barrett, 53, has no claims or controversy against OHA. The Moiliili resident, who did not attend the hearing, applied for a small-business loan from the agency last Oct. 28, but the application was returned for further information and was never resubmitted, she said.

Also, she said, Barrett filed his lawsuit more than three weeks before he filed his application, which makes his complaint a "fabricated case."

Broder said Barrett, a Hawaii resident of 30 years, has not worked since 1975, when he was classified 100 percent disabled by the Social Security Administration. Those disability payments, along with interest from his savings, are his only sources of income, she said.

Broder added that Barrett himself has stated he cannot work because of his disability, which raises the question if he is ready and able to compete for the OHA loan, as well as start up a printing business if he got the money.

Attorney Robert Klein, who represents Hawaiian homesteaders in the case, added that Barrett's claim is based on his intent to apply for an OHA loan and not on any factual evidence.

"If a plaintiff can't prove his standing, the court has no jurisdiction to entertain the plaintiff's grievances," said Klein, a retired Hawaii Supreme Court associate justice.

But Houston attorney William S. Helfand, lead counsel for Barrett, told Ezra his client has standing to seek equal treatment from these agencies. OHA, he said, denied his application because he could not demonstrate he has Hawaiian ancestry.

Also, there is no evidence to show that Barrett is not interested in obtaining the same benefits awarded to native Hawaiians, he said.

The defense, Helfand said, is mounting a futile effort to delay this case, and it would be more economical for the federal court to just hear his complaint rather than have Barrett or someone else refile it later on.

"He has standing for the same reason that any person who would like to gain the benefit of the government benefits that are available from OHA and the Hawaiian Homes Commission and native gathering rights are available to anyone," Helfand said after the hearing.

Ezra explained when the federal court faces a challenge to the standing of a complaint, it is not entitled to just let the case go forward just for "judicial economy." Federal courts must be "scrupulously careful" that they hear only genuine cases of controversy, he said.

Ezra said if he dismisses Barrett's complaint, the plaintiffs can appeal his decision before the 9th U.S. Circuit Court of Appeals.

If he does not, then the case will be put back on the judicial calendar for a trial date.

Meanwhile, Gov. Ben Cayetano said yesterday the state may be in a better position in the Barrett case than it was in Rice vs. Cayetano because of the 80-year history of the Hawaiian Homes Commission, set up by Congress.