2 defendants
dismissed from
Hawaiian programs
suitOHA, though, remains
in the suit challenging
benefits for Hawaiians
The Office of Hawaiian Affairs is the remaining defendant in the federal lawsuit challenging the constitutionality of programs that benefit Hawaiians.
In a 32-page ruling issued late yesterday, U.S. District Judge Susan Mollway followed her earlier announced inclinations and dismissed the other defendants -- the state Department of Hawaiian Home Lands/ Hawaiian Homes Commission and the federal government.
She also dismissed defendant intervenors, the State Council of Hawaiian Homestead Association and Anthony Sang Sr., Hui Kako'o'aina Ho'opulapula, Blossom Feiteira and Dutch Saffery.
Earl Arakaki and 15 others had sued the state, DHHL and OHA in March 2002, alleging that the race-based programs discriminate against non-Hawaiians. They asked that the state stop spending state tax revenues for both programs.
Mollway ruled that the plaintiffs do not have standing to challenge the federal requirements for the Hawaiian Home Lands program, which was adopted as part of Hawaii's Constitution under the federal 1959 Statehood Admissions Act. Based on a recent 9th U.S. Circuit Court of Appeals ruling, the plaintiffs would have to challenge federal law to challenge the corresponding state law, she said.
"State taxpayer standing is too limited to permit a challenge to a federal law and therefore does not allow plaintiffs to challenge the Hawaiian Home Lands lease program, which is mandated by both state and federal law," Mollway ruled.
Micah Kane, DHHL director, said the agency's dismissal from the lawsuit validates its legal standing as recognized by Congress when it enacted the Hawaiian Homes Commission Act in 1921. The act set aside about 200,000 acres of ceded land and created a program of loans and long-term leases to benefit native Hawaiians.
H. William Burgess, attorney for the plaintiffs, said that when considering a motion to dismiss for lack of standing, the court is required to take the plaintiffs' allegations as true and to construe it in favor of the plaintiffs. The court basically disregarded that and made what amounts to factual determinations, Burgess said.
"She says the Admissions Act doesn't have any causal connection to the taxpayer injury that the plaintiffs are suffering, and that's just contrary to the law," he said.
State Attorney General Mark Bennett said he is pleased that the court accepted the state's argument to dismiss claims against DHHL, and his office looks forward to defending the claims against OHA.
One of the arguments OHA intends to raise is that it should also be dismissed from the case because it was also established pursuant to the Admissions Act, said Jon Van Dyke, one of three attorneys representing OHA.
The same reasoning Mollway used to dismiss DHHL might lead her to deny the plaintiffs' standing and conclude OHA should be dismissed from the suit as well, he said.
