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Judge takes up issue
of injury in OHA lawsuit

The agency maintains the 16 plaintiffs
lack proper legal standing

By Pat Omandam

U.S. District Judge Susan Oki Mollway said she will decide within 10 days whether to dismiss a case that challenges state-run programs for Hawaiians.

At issue is whether the group of 16 plaintiffs have standing as taxpayers and have suffered specific legal injuries because state land and money is being used to pay for programs for Hawaiians offered by the Office of Hawaiian Affairs and the state Department of Hawaiian Home Lands, the defendants in the case.

"What's happened is public money paid by taxpayers into the general fund is being diverted to two racially discriminatory programs from which all of our plaintiffs, and most of the people of Hawaii, are walled off," said attorney Patrick Hanifin, who, along with retired attorney H. William Burgess, represents the plaintiffs.

"DHHL commissioners are obliged by law not to give anything to the general public without getting paid to do it. ... Similarly, OHA trustees say they have absolutely no duty to the general public and they're going to use the public's money for the benefit of their group and no one else," Hanifin said.

The lawsuit was filed in March, a month after a federal court judge dismissed a similar lawsuit filed by John Carroll, who sought to stop state ceded-land payments to OHA because of allegedly discriminatory practices.

During a nearly two-hour hearing yesterday morning, Mollway questioned both sides on legal precedence that could allow the case to move to trial.

In mid-March, Mollway denied the plaintiffs' request for a temporary restraining order against the agencies, but she had indicated they likely had standing to go forward.

Burgess explained yesterday that the plaintiffs want the court to invalidate Section 5(f) of the state Admissions Act of 1959, which says one use of public trust land revenue is for the betterment of conditions of native Hawaiians. And the group wants the court to enforce the other sections in the act, which include using the public trust revenue, also known as ceded land revenue, toward public education.

Yesterday, OHA and the Hawaiian Homes Commission sought to have the case thrown out, claiming the group suffered no specific legal injury.

OHA board attorney Sherry Broder told Mollway the plaintiffs have only a generalized grievance and that there is no direct "pocketbook" injury they can point to.

Moreover, she said, it makes no sense that someone could challenge state programs for Hawaiians while federal programs for Hawaiians continue even after the U.S. Supreme Court said in the February 2000 Rice vs. Cayetano decision that OHA must open board elections to all Hawaii voters, not just Hawaiians.

"I can't see the court philosophically issuing a ruling for people when a ruling will result in no remedy," Broder said. "The grievances are so generalized that there's really no way to put a finger on what they want."

The plaintiffs in this case are Earl F. Arakaki, Evelyn C. Arakaki, Edward U. Bugarin, Sandra P. Burgess, Patricia Carroll, Robert M. Chapman, Brian L. Clarke, Michael Y. Garcia, Roger Grantham, Toby M. Kravet, James I. Kuroiwa Jr., Fran Nichols, Donna M. Scaff, Jack H. Scaff, Allen Teshima and Thurston Twigg-Smith.

OHA Special

Rice vs. Cayetano arguments

Rice vs. Cayetano decision

Holo I Mua: Sovereignty Roundtable

E-mail to City Desk


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