U.S. dismissed as
OHA suit defendant

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By Pat Omandam
pomandam@starbulletin.com

U.S. District Judge Susan Oki Mollway has removed the federal government as a defendant in a lawsuit that challenges state-run programs for Hawaiians.

Mollway said since she had ruled the 16 plaintiffs have standing only as state taxpayers to bring their claims, the outcome of this case can only affect matters at the state government level.

That means it is not an issue that the federal government can do anything about, she said.

"The scope of the remedy is limited to how state revenue can be spent," Mollway told plaintiffs' attorney Patrick Hanifin yesterday.

Hanifin and retired attorney H. William Burgess represent 16 plaintiffs who filed a lawsuit in March against the state administration, the Office of Hawaiian Affairs, the state Department of Hawaiian Home Lands and the U.S. government. The group wants OHA and DHHL declared unconstitutional because it claims both are race-based programs that discriminate against non-Hawaiians.

Hanifin argued yesterday against the federal government's motion to dismiss itself from the lawsuit. He said the United States must be a defendant in this case because the federal government created the 1959 state Admissions Act that required the state to oversee the 1920 Hawaiian Home Lands Commission Act.

The Admissions Act also required the state to provide revenue from ceded lands for the betterment of native Hawaiians, which OHA had been receiving until a Hawaii Supreme Court ruling last September invalidated the legislative formula on how that money should be given.

Hanifin said since the defendants are using the Admissions Act to justify the constitutionality of these programs, the federal government must be a party to the case. He fears the lawsuit may be dismissed because of its absence.

"We believe our taxpayer standing does reach the constitutionality of these programs," Hanifin said.

But Assistant U.S. Attorney Silas DeRoma, representing the federal government in this case, agreed with Mollway the plaintiffs have no standing in this case to bring claims against the U.S. government. He said the claims involving the Admissions Act are "sort of a generalized grievance" that cannot be taken up in this case.

"The U.S. has no role on how the state of Hawaii spends their revenue," DeRoma said.

OHA attorney Sherry Broder said Mollway's decision means the judge will not decide the constitutionality of OHA or the Hawaiian Home Lands program.

Mollway noted it was proper for the plaintiffs to name the federal government as a defendant when the case was originally filed. But the case has been restricted now to address only concerns that affect the plaintiffs as state taxpayers.