State accused of
lawsuit delay tactics

A judge hears motions in a legal
challenge to Hawaiian programs

By Pat Omandam

Plaintiffs in a federal lawsuit challenging government programs for native Hawaiians say the state is filing unnecessary motions to delay the case.

"We clearly disagree," responded Girard Lau, the deputy attorney general who is defending the state.

U.S. District Judge Susan Oki Mollway denied a procedural motion yesterday by Lau to split the case into two parts.

Mollway said she turned down the request because the motion focused too much on the merits of the case and not enough on why and how the split would make the proceedings more efficient. But she granted the state additional time to refile a similar motion.

The judge said it was best for everyone involved to consider all possible avenues this case could take. "This is a complicated case," Mollway said. "It has far-reaching ramifications."

Lau said one part of the case needs to be separated so arguments can first focus on whether the state is allowed to give special treatment to Hawaiians, under federal case law, because they are the indigenous people of Hawaii.

If the judge then decides against the defendants on this issue, he said, the second part -- the broader and more complicated issue of affirmative action and discrimination -- could be brought up.

Plaintiffs' attorney Patrick Hanifin said the state was using these filings as a delaying tactic.

Hanifin and retired attorney H. William Burgess represent the 16 plaintiffs who filed a lawsuit in March saying the Office of Hawaiian Affairs and the state Department of Hawaiian Home Lands were unconstitutional because of allegations these state agencies were race-based.

Hanifin told Mollway he understands her concerns about taking the time necessary "to get this case right" but believes the two or three months it will take to hear this motion is an unnecessary delay.

He said the longer the wait toward a judgment in this case, the more taxpayers dollars will be spent and lost on programs for Hawaiians.

"It seems to me, we need to look at the facts of this case in any event," Hanifin said.

The plaintiffs 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 K. Kuroiwa Jr., Fran Nichols, Donna M. Scaff, Jack H. Scaff, Allen Teshima and Thurston Twigg-Smith.

In March, Mollway denied the plaintiffs' request for a temporary restraining order against the state agencies.

A month later, she dismissed a motion by the defendants to have the case thrown out, saying the 16 plaintiffs have standing as taxpayers to bring their case forward.

The lawsuit is the latest to challenge government programs for Hawaiians since a February 2000 U.S. Supreme Court ruling struck down the state's Hawaiians-only OHA elections.

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