'Hawaiian-only' foes may need new strategy

THE ISSUE The U.S. Supreme Court has disallowed people the right, as taxpayers, to challenge city and state expenditures in court.

STATE programs that provide assistance to Hawaiians have gained protection by a U.S. Supreme Court ruling that taxpayers cannot challenge state expenditures in court. The ruling should bring an end to a lawsuit alleging that such programs are racially discriminatory, but the programs still might be legally vulnerable in the absence of Hawaiian sovereignty.

While the ruling in an Ohio case appears to doom the Hawaii lawsuit, it could prompt the programs' adversaries to change strategy. Their only recourse might be to find plaintiffs who can claim they specifically -- not hypothetically -- were denied benefits, much as children who claimed they were denied admission to Kamehameha Schools because of racial discrimination.

The Supreme Court has long disallowed people to challenge particular federal expenditures by mere virtue of being federal taxpayers. Recognizing that precedent, a three-judge panel of the 9th U.S. Circuit Court of Appeals last year upheld District Judge Susan Mollway's dismissal of a challenge to federal money going to Hawaiian programs.

However, the panel ruled that Earl Arakaki and other plaintiffs could challenge the funneling of state tax dollars to the Office of Hawaiian Affairs. Only one-tenth of OHA's budget comes from state money; most comes from the Hawaiian Home Lands trust, which Mollway and the appellate judges shielded from the Arakaki lawsuit.

The Supreme Court on Monday unanimously rejected a lawsuit by a group of Ohio taxpayers challenging nearly $300 million in city and state tax breaks for DaimlerChrysler AG's new Jeep plant in Toledo. That should bring a finishing touch to the Arakaki suit.

The ruling affords city and state programs the same protection that federal programs have had against taxpayer lawsuits.