THEORY OF THE ARAKAKI#2 LAWSUIT: The Office of Hawaiian Affairs (OHA) and the Department of Hawaiian Homelands (DHHL) are agencies of the State of Hawai'i whose beneficiaries according to the state constitution are restricted by race. DHHL can give benefits only to ethnic Hawaiians with at least 50% native blood quantum (although people with 25% can inherit a lease), while OHA can give benefits only to people with any amount of native ancestry. It is contrary to the equal protection clause of the 14th Amendment of the U.S. Constitution for a government agency to provide benefits to a racially exclusionary set of beneficiaries. Taxpayers of the State of Hawai'i have standing to complain that their tax dollars are being spent for purposes that are unconstitutional. Revenues earned from government operations on state lands are part of the money available for running the government; so if land revenues are diverted to a racially restricted set of beneficiaries, then either taxpayers will be forced to pay higher taxes or else their general government services must be cut.
HANDLING OF THE LAWSUIT IN THE U.S. DISTRICT COURT IN HONOLULU: The case was filled with lengthy delays punctuated by motions, hearings, and rulings that resulted in the scope of the lawsuit and the number of plaintiffs being constantly whittled down. One lengthy delay occurred when one of plaintiffs' attorneys suddenly died unexpectedly a few days before a long-awaited hearing, and the judge insisted on imposing another lengthy delay despite vigorous protest from the remaining attorney that he was ready to proceed and objected to the delay. The case was finally dismissed for a reason that the judge could have used (under her viewpoint) to dismiss it at the beginning, nearly two years previously. The reason given for the final coup de grace was that the basic issue in the case is a political question because Congress has been making progress toward recognizing a political status for ethnic Hawaiians (much of that "progress" was made during the two years the lawsuit was in progress) and therefore the court should not interfere in a political issue.
THE MOST IMPORTANT RULINGS ON LEGAL ISSUES (AND THE GROUNDS ON WHICH THEY WILL PROBABLY BE APPEALED):
The two most important rulings are (a) taxpayers do not have standing to complain about how land revenues are spent because land revenues are not tax dollars [a cascade of other rulings were derived from (a)]; and (b) when a bill has been introduced in Congress that might affect the outcome of a lawsuit, the mere existence of that bill makes the lawsuit inappropriate because the issue is a political question [even though the original bill died in the 106th Congress in 2000, a revised version died in the 107th Congress at the end of 2002, and the 108th Congress has seen three more serial versions of the bill with no floor action].
Here are the rulings (and appeal concepts) more clearly identified:
(1) The plaintiffs have standing as state taxpayers only to complain about how tax dollars are being spent, and do not have standing to complain about how the state spends revenue it receives from its lands. (But this is absurd, because tax dollars and land revenues together determine how much money the state has available to spend on government programs, so that the diversion of land revenues to a racially exclusionary set of beneficiaries forces the government either to raise taxes or to reduce benefits for the citizens of other races. Also, hundreds of millions of tax dollars have been appropriated over the years and continue to be appropriated to make up for land revenues not sent to OHA or DHHL in the past. For example, $600 Million in tax dollars are being sent to DHHL at the rate of $30 Million per year for 20 years under a settlement reached a few years ago. Also, the state legislature has been sending 20% of ceded land money to OHA based on gross revenue rather than net income after expenses; this places a burden on taxpayers who bear all the expenses because net income after expenses would be zero or even negative)
(2) The plaintiffs do not have standing as state taxpayers to complain about any federal laws, including the Hawaiian Homes Commission Act of 1921, Section 5(f) of the Statehood Admissions Act, the Native Hawaiian Education Act, etc. Therefore DHHL, and the U.S. government, were dismissed from the lawsuit. (But HHCA and the Admissions Act taken together impose requirements on the State of Hawai'i for the expenditure of funds for racially restricted beneficiaries, and such expenditures impact state taxpayers even if the money comes entirely from land revenues -- see item (1))
(3) The three ethnic Hawaiian plaintiffs were dismissed based on the rulings in items (1) and (2). The three ethnic Hawaiian plaintiffs do have Hawaiian blood and are therefore eligible to receive benefits from OHA and therefore have no standing to complain about OHA being racially exclusionary. Also, they previously did have standing to complain about DHHL because they do not have the 50% blood quantum; but DHHL was dismissed as a defendant. (But since the rulings on items (1) and (2) were incorrect, therefore these three plaintiffs should be reinstated on appeal)
(4) The lawsuit was finally dismissed on the grounds that it deals with a political question. What makes it a political question is that several acts of Congress contain language in their preambles asserting that there is a federal trust relationship with Native Hawaiians and that Congress has delegated part of the responsibility for implementing that relationship to the State of Hawai'i; and furthermore the Hawaiian Recognition Bill, also known as the Akaka bill, has been introduced in Congress and is the subject of ongoing political lobbying. (But legislative preambles are statements of opinion and not proven fact, and they do not have the force of law. Also, in Rice v. Cayetano, the 7-2 majority said that it is a matter of considerable doubt and would be difficult for the court to decide whether the federal government can delegate its trust duties to states [and it did not need to decide that issue in that case]. Although the Akaka bill is under consideration in Congress, a court should rely only on laws that have actually been passed, not laws that might perhaps be passed. And even if the Akaka bill does pass and Native Hawaiians are recognized as comparable to an Indian tribe, that will not make either OHA or DHHL into tribal entities because they remain agencies of the state government and are still funded by state government money which taxpayers have a right to complain about)
THIS LAWSUIT HAS MANY DOCUMENTS AND NEWSPAPER ARTICLES OVER A LENGTHY PERIOD OF TIME. ITEMS ARE ARRANGED IN CHRONOLOGICAL ORDER. TO SEE NEWS REPORTS AND EDITORIALS MARKING THE END OF PHASE 1, IN THE U.S. DISTRICT COURT IN HONOLULU IN JANUARY 2004, SCROLL ALL THE WAY DOWN TO THE BOTTOM OF THIS WEBPAGE.
FOR INFORMATION ABOUT PHASE 2 OF THIS LAWSUIT, IN THE 9TH CIRCUIT COURT OF APPEALS, GO TO THE PHASE 2 WEBPAGE AT:
https://www.angelfire.com/hi2/hawaiiansovereignty/arakaki2appeal9thcir.html
======================
To view the legal documents exactly as they were filed, including captions, tables of contents, and page numbers, you will need Acrobat Reader and perhaps a minute or two to download some large pdf files. All the formatting in pdf is beautifully preserved; but you cannot easily copy and paste portions of pdf documents into e-mails or other documents; and you will have to use your "back" button on your browser if you wish to return to this page afterward.
All the important documents are offered first in pdf files requiring Acrobat Reader.
A simpler but less beautiful way of reading some of the documents is offered after that.
On March 12, 2002 Judge Mollway (U.S. District Court in Honolulu) denied the motion for a Temporary Restraining Order, because plaintiffs had not proved that irreparable harm would occur to them within the next ten or 20 days if a TRO were not granted. However, Judge Mollway agreed that the plaintiffs do have standing as taxpayers to bring this lawsuit, which now moves forward. See Honolulu Advertiser summary of court action in
http://the.honoluluadvertiser.com/article/2002/Mar/13/ln/ln01a.html
Defendants filed a motion to dismiss for lack of standing. Oral arguments on the motion to dismiss were held on April 29, 2002. On May 8, 2002 Judge Mollway issued her ruling on the motion, granting standing on certain issues. The case moves forward.
Click here to read a newspaper report about the oral arguments, a public statement by plaintiffs' attorney H. William Burgess describing Judge Mollway's decision, and a newspaper report about that decision.
https://www.angelfire.com/hi2/hawaiiansovereignty/arakaki2motiondismissstanding050802.html
On June 10, 2002 a hearing was held on OHA's motion asking the court to take judicial notice of various alleged "facts" set forth in the preambles of various statutes and resolutions (including the "Apology resolution"). That afternoon a written order was entered denying the motion. In that order the court pointed out that a judicially noticed fact must be one not subject to reasonable dispute. U.S. District Court Judge Susan Oki Mollway agreed that the court must take judicial notice of the existence of a statute; "However, that does not mean that this court must take as true all congressional findings of fact set forth in its resolutions and statutes." She said it is often appropriate for the court to defer to congressional findings of fact. But, quoting a 9th Circuit decision, she said, "However, courts should not blindly defer to congressional findings of fact bearing on an issue of constitutional law ... it is our task in the end to decide whether Congress has violated the Constitution." Judge Mollway's order also said the court cannot tell at this time whether any of those alleged facts are necessary to determine the issues in this case. Judge Mollway therefore denied OHA's motion for judicial notice "without prejudice to any party's renewing a request for judicial notice on a particular matter as the case develops." The hearing was covered by both Honolulu daily newspapers:
http://starbulletin.com/2002/06/11/news/story8.html
and
http://the.honoluluadvertiser.com/article/2002/Jun/10/br/br02p.html
On August 19, 2002 Judge Mollway denied defendants' motion to bifurcate, which plaintiffs said had been an attempt to delay. If bifurcation were granted, the court would first consider whether Morton v. Mancari applies to OHA. If so, then racial entitlement programs could be justified by an easier "rational basis" test; if not, then such programs would need to pass a "strict scrutiny" test and defendants might then proceed with a lengthy fact-intensive trial. Plaintiffs argued that Mancari only applies to the federal Bureau of Indian Affairs and only regarding members of federally recognized tribes; and that the Rice v. Cayetano decision had already decided that it is unnecessary to decide whether Congress or Hawai'i can treat Hawaiians as though they were an Indian tribe because in fact OHA is merely an agency of the State of Hawai'i. For a newspaper report of the August 19 hearing on the motion to bifurcate, see:
http://starbulletin.com/2002/08/20/news/story8.html
In Summer 2002 research was done for plaintiffs in the Arakaki2 lawsuit showing astonishing amounts of state government money spent for OHA and DHHL. For details, see:
On September 3, 2002 Judge Mollway granted a motion by the United States to have itself dismissed as a defendant in the lawsuit. Judge Mollway had previously ruled that the plaintiffs have standing only as state taxpayers, to complain only about how state tax dollars are spent. Therefore no federal laws are at risk, and the U.S. should no longer be a defendant. For newspaper reports on the ruling, see:
http://starbulletin.com/2002/09/04/news/story7.html
and
http://the.honoluluadvertiser.com/article/2002/Sep/04/ln/ln15a.html
*** Editorial comment by Ken Conklin: Judge Mollway previously ruled that State taxpayers only have standing to complain about how tax dollars are spent, and cannot complain about how State revenues from ceded lands are spent. But that was an error. The State funds its budget from all the dollars it receives, whether from taxes or land revenues. If land revenues are diverted from general-fund purposes to special agencies, then taxpayers will need to pay more taxes to cover the general-fund purposes. Therefore, taxpayers should have standing to complain about ceded land revenues being spent on unconstitutional purposes. Mollway seems to be saying that nobody could possibly have standing to complain about racial restrictions on ceded land revenues. Part of her reasoning is that section 5(f) of the Admissions Act allows the State of Hawai'i to spend ceded land revenues on any one or more of five purposes, one of which is "the betterment of Native Hawaiians." Thus, she reasons, it is a political issue and not a legal issue how the Legislature chooses to allocate ceded land revenues among the five purposes. But clearly the problem lies with the 5(f) provision of the Admissions Act, which allows the State to make a political decision to allocate ceded land revenues to racially restricted programs. Section 5(f) of the Admissions Act is unconstitutional under the 14th Amendment to the extent it authorizes the State to spend ceded land revenues on racially restricted beneficiaries. And taxpayers should have standing to challenge section 5(f) because it allows money to be taken from constitutionally permissible general purposes and diverted to unconstitutional racially-restricted agencies, thereby forcing taxpayers to pay more taxes. Hawai'i taxpayers should have standing to demand the court to invalidate the unconstitutional aspects of section 5(f) of the Admissions Act and thereby to restore and enforce the taxpayers' rights as beneficiaries of the ceded lands trust established under the Annexation of 1898, which makes the ceded lands a public trust whose revenues "shall be used solely for the benefit of [ALL] the inhabitants of the Hawaiian Islands for educational and other public purposes." Since the constitutionality of section 5(f) of the federal Admissions Act is at issue, therefore the U.S. must be a defendant in this lawsuit. I believe the restriction of plaintiffs' standing to tax dollars and not to ceded land revenues is a reversible error on appeal. One of the "fruits of that poisonous tree" is the ruling that no federal laws are under challenge and therefore the U.S. should be dismissed from the lawsuit -- this also is a reversible error.
On Monday, March 31, 2003 a three-judge panel at the 9th Circuit Court of Appeals upheld a previous ruling by Judge Mollway denying a motion to intervene by a group of native Hawaiians led by Joseph Hoohuli. Both courts ruled that the Ho'ohuli movants are adequately represented by other defendnts including the state, Hawaiian Homes and OHA. The decision was reported in the Honolulu Star-Bulletin at:
http://starbulletin.com/2003/04/02/news/story6.html
The Star-Bulletin article also noted that a set of pre-trial motions by defendants will be heard on June 16, 2003; and if defendants lose, a second set of pretrial motions by defendants will be heard on September 8. If the case has still not been dismissed after that, then a date will be set for a third set of defendants' pretrial motions. The trial is tentatively set for June, 2004. Thus, the defendants seem to be succeeding in their strategy of delay, obfuscation, and running up the expense of litigation where wealthy institutional defendants with virtually unlimited resources can hope to bury the plaintiffs under mountains of paperwork.
A hearing had been scheduled for Monday June 16, 2003, as noted above. However, on the morning of Friday June 13 plaintiffs' attorney Patrick W. Hanifin suffered a heart attack. Judge Mollway held a telephone conference with plaintiffs' co-counsel attorney H. William Burgess and defendants' attorneys, to reschedule the hearing. Despite strong objections from Mr. Burgess, Judge Mollaway postponed the hearing to September 8. Here are excerpts from the Honolulu Star-Bulletin article of June 14 reporting the delay and explaining why the delay is significant in view of the Akaka bill:
http://starbulletin.com/2003/06/14/news/story3.html
H. William Burgess, co-counsel on the case alleging racial discrimination, strongly objected to the decision to delay the proceeding. Burgess said he is ready to argue the case alone and said the plaintiffs he has spoken with want to continue now. He added there have been enough delays in this lawsuit. "It's very unsatisfactory," Burgess said. ... Hanifin, 48, was at work early yesterday morning when he suffered a heart attack ... Burgess said Hanifin drove himself to Queen's Hospital, where he underwent successful open heart surgery. He was told Hanifin is expected to make a full recovery. The three-month delay means the case could be affected by the outcome of a federal recognition bill for native Hawaiians. The so-called Akaka bill is pending before the U.S. Senate, and action could be taken on it before the Sept. 8 hearing. Attorney Sherry Broder, who is defending the Office of Hawaiian Affairs, said passage of the Akaka bill would bolster defense arguments against the case. ... Their March 2002 lawsuit is the latest since the Rice vs. Cayetano ruling by the U.S. Supreme Court. The February 2000 high court ruling opened up OHA's Hawaiians-only elections to voters of all ethnicities. A subsequent case in U.S. District Court opened OHA board elections to non-Hawaiian candidates. On Monday, OHA, Hawaiian homestead and state attorneys were expected to ask Mollway to throw out the Arakaki lawsuit because the challenge to DHHL is more a political than judicial issue. They also contend Congress and state government have recognized the claims of native Hawaiians by providing general funds to OHA as part of the ongoing reconciliation. Meanwhile, the Arakaki lawsuit and the Akaka bill continue to draw interest from the Hawaiian community. More than 500 people attended workshops in Waianae, Waimanalo and Papakolea last week to learn about these issues.
On Saturday June 14, a day after Judge Mollway postponed the hearing until September 8 over the objections of co-counsel H. William Burgess, Patrick Hanifin died. Mr. Burgess was still fully prepared to go forward with the Monday hearing, but the judge refused. For a tribute to Patrick Hanifin, including a list of his scholarly essays, TV and radio appearances, Congressional testimony, information about his education and career, and his obituaries, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/HanifinTribute.html
On September 7, 2003 a pro-apartheid "red shirt" march by 5,000 to 10,000 ethnic Hawaiians and supporters took place in Waikiki. The purpose of the march was to protest the Arakaki2 lawsuit as well as the two Kamehameha School desegregation lawsuits. Over a period of several weeks, the red-shirt march generated important published statements by the Arakaki2 plaintiffs and by the OHA trustees, as well as letters to editor debating the legitimacy of the overthrow and annexation and bemoaning the allegedly downtrodden status of ethnic Hawaiians. To see extensive material about all that, visit:
https://www.angelfire.com/hi2/hawaiiansovereignty/redshirtsept2003.html
On September 8, 2003 Judge Mollway once again delayed the Arakaki2 lawsuit by an additional 4 months. This time the reason given was that a decision handed down by the 9th Circuit Court of Appeals on September 2, in a different case, might have an impact on the Arakaki case. The September 2 decision was handed down by the 9th Circuit Court of Appeals, upholding a decision previously made by Honolulu District Court Judge Ezra to dismiss the consolidated cases Barrett and Carroll, on grounds that Patrick Barrett and John Carroll lacked standing. Part of the reasoning for the dismissal at both the District Court and 9th Circuit was that the United States should have been named as a defendant, since a law of the United States was being challenged (the Hawaiian Homes Commission Act of 1921, and a portion of the Hawai'i Admissions Act of 1959). The 9th Circuit decision in Barrett/Carroll can be downloaded from:
https://www.angelfire.com/hi5/bigfiles/BarrettCarroll9thCir090203.pdf
In Arakaki2, the plaintiffs had very correctly named the U.S. as a defendant. But on September 3, 2002, the U.S. had been dismissed as a defendant by Judge Mollway based on a request from the U.S. (see above). Now a year later, Judge Mollway is wondering whether the U.S. must be re-joined as a defendant. However, the September 8 hearing on Arakaki was for the purpose of hearing oral arguments on technical motions not related to whether the U.S. should be dismissed as a defendant. The hearing on those motions could have gone forward without waiting for a decision whether to re-join the U.S. Plaintiffs strenuously informed Judge Mollway of that fact, and of their objections to further delay. Nevertheless, Judge Mollaway used the long-awaited September 8 motions-hearing date to hold a status conference on scheduling instead of actually hearing the motions, and postponed the motions hearing until January 12, 2004. In the meantime, plaintiffs and defendants, and the U.S., must file legal briefs regarding whether the U.S. must be a defendant, and a hearing will be held on November 17 regarding that issue. Plaintiffs are understandably upset that delay after delay has been imposed upon them, and in the meantime tens of millions of dollars have been (and will continue to be) taken from the people of Hawai'i and handed over to racially exclusionary programs, while the delays are also adding to the legal fees and expenses being paid by all Hawai'i's people and especially by the plaintiffs. The last time any substantive hearings were held by this court was June 10, 2002. This series of delays of 19 months (6/10/02 to 1/12/04) plays directly into the hands of the State, OHA, DHHL, and others seeking to preserve racially exclusionary programs -- those programs continue until the court finally reaches the right decision and shuts them down. One of the attorneys for the plaintiffs (Patrick W. Hanifin) and one of the plaintiffs (Roger Grantham) have already died waiting for justice. Here are two newspaper articles covering the September 8 "status hearing":
http://the.honoluluadvertiser.com/article/2003/Sep/09/ln/ln25a.html
and
http://starbulletin.com/2003/09/09/news/story8.html
On September 28, 2003 the 15 plaintiffs in Arakaki 2 published a statement in the Honolulu Advertiser explaining why the lawsuit is necessary, fair, and just; and why it should move forward expeditiously without further delay. The following Sunday, October 5, the OHA trustees published a response reasserting the usual claims about illegal overthrow, illegal annexation, victimhood statistics, etc. Both statements are copied in full at:
https://www.angelfire.com/hi2/hawaiiansovereignty/arakaki2plaintiffstatement092803.html
On October 14, 2003 the Arakaki2 plaintiffs filed a motion, and memo in support, to vacate restrictions on their standing as taxpayers or, in the alternative, to certify the standing order as final. Previously Judge Mollway had ruled that the Arakaki plaintiffs have standing only as taxpayers. The judge’s theory was that revenue from ceded lands is not tax money. Therefore the plaintiffs in their status as taxpayers cannot attack either the diversion of ceded land revenues to racially exclusionary purposes or the foregoing of ceded land revenue through the leasing of ceded lands to a preferred racial group at negligible lease rent. The order limiting the plaintiffs’ standing was part of the order dismissing the U.S. government as a defendant on the grounds that no federal laws were being challenged. Later, the 9th Circuit Court made a decision in two other cases (Barrett and Carroll) that upheld the District Court’s dismissal of those cases on the grounds that plaintiffs Barrett and Carroll lacked standing partly because they had failed to name the United States as a defendant. Within a few days of the 9th Circuit decision, Judge Mollway vacated her previous order to dismiss the U.S. in the Arakaki case, and ordered all parties to present arguments on whether the U.S. should be reinstated as a plaintiff. Since the order limiting plaintiffs’ standing to tax dollars was a part of the order dismissing the U.S., and since that entire order has now been vacated, plaintiffs argue in this motion that the limitation on their standing is no longer in effect. They further argue that the U.S. should be named as a defendant because portions of the Admissions Act of 1959 and the Hawaiian Homes Commission Act of 1921 should be nullified because they are unconstitutional violations of the 14th Amendment. Plaintiffs further argue that the tens of millions of dollars in ceded land revenues annually diverted to racially exclusionary OHA and DHHL force state taxpayers to make up for the lost revenue by raising taxes. Plaintiffs argue that if Judge Mollway nevertheless decides to maintain the limitation on plaintiffs’ standing, then that ruling should be issued as a final order and not remain open for reassessment until the case-in-chief is decided. Only by having a final order regarding limitation on standing can that issue be appealed while other aspects of the case can move forward. Otherwise, a later ruling on appeal of the standing limitation, even if favorable to plaintiffs, would then necessitate starting the entire process over again and no forward progress would have been made despite several years of delays and obfuscation, during which time huge amounts of both tax dollars and ceded land revenues would have been lost to unconstitutional programs. Four items are provided: (1) a short table of contents so readers can see the topics of discussion (even though the page numbers are not useful); (2) a short table of authorities so readers can see the legal precedents being cited; (3) excerpts from the motion to either vacate limitations on standing or else make the order final; and (4) excerpts from the memorandum in support of the motion. The text provided is the complete text of each item, except for captions and formatting in items 3 and 4.
https://www.angelfire.com/hi2/hawaiiansovereignty/arakaki2101403motionmemovacaterestrstand.html
A series of red-shirt marches and rallies was held Sunday November 16 through Tuesday November 18, 2003, to protest the Arakaki 2 lawsuit and the two Kamehameha School lawsuits. It was a clear attempt to intimidate federal judges and the general public. See:
https://www.angelfire.com/hi2/hawaiiansovereignty/redshirtnov2003.html
============
On Monday November 17 Judge Mollway held a hearing on several important motions in the Arakaki 2 lawsuit. A few days before the hearing she sent attorneys from all parties a written document containing her "inclinations" regarding these motions, so the attorneys could prepare their responses for the oral hearing. A 4-page pdf containing her inclinations was posted on the U.S. District Court Hawai'i website, from which it was copied; and it can be downloaded from
https://www.angelfire.com/hi5/bigfiles/MollwayArakaki2Inclin111703.pdf
Judge Mollway's final ruling on these topics will be issued a week or two following the hearing.
Here are articles from the two Honolulu newspapers on Tuesday November 18, 2003 reporting on the hearing.
----------
http://the.honoluluadvertiser.com/article/2003/Nov/18/ln/ln07a.html
The Honolulu Advertiser, Tuesday, November 18, 2003
Judge lends hope to Hawaiians
By Vicki Viotti
Leaders in the Hawaiian community are cautiously optimistic after learning yesterday that a federal judge is likely to scale back the landmark Arakaki v. Lingle lawsuit challenging Hawaiian entitlements.
U.S. District Judge Susan Oki Mollway is expected to rule in two weeks on a portion of the case. But before convening a hearing yesterday, she sent signals that she's likely to excuse every party in the lawsuit but the state and the Office of Hawaiian Affairs.
Mollway, unlike most federal judges, releases advance written "inclinations" about how she's likely to rule, allowing attorneys to prepare their arguments for the hearing. According to those inclinations, she's unlikely to dismantle either the state Department of Hawaiian Home Lands, which awards homesteads to those of at least 50 percent Hawaiian blood, or OHA, which administers programs benefiting anyone of Hawaiian ancestry.
Mollway stated in her inclination that only the use of state tax money for the programs can be challenged. This would exclude income that OHA receives from rent or other sources.
She also wrote that she is likely to rule that as state taxpayers, the plaintiffs don't have standing to challenge the federal law making Hawai'i a state. This could be crucial, because the state is arguing that the federal law is what authorizes the creation of the land trust for Hawaiian homesteading.
Mollway wrote that if she holds to these inclinations, she's likely to dismiss the federal government, the Hawaiian Home Lands Department, the homesteaders association and other intervening parties from the case.
OHA, which was created by a state constitutional amendment in 1978, and the state government would remain as parties to defend their use of state taxes for Hawaiians-only programs.
Mark Bennett, state attorney general, said he's hopeful that Mollway will excuse the Hawaiian homes department.
"That still leaves significant issues in the Arakaki case but we are confident that if the case progresses we will ultimately prevail in that suit in its entirety," Bennett said.
Haunani Apoliona, chairwoman of the OHA board of trustees, said such a ruling would count as a victory for the homesteaders, but possibly only a temporary reprieve. Apoliona said Mollway also indicated ways that plaintiffs could have standing to challenge the admission act: by applying for a homestead and then being turned down.
This could spark a future lawsuit, she said, adding that the best defense lies in the Akaka bill, now in Congress, which would recognize Hawaiians as a political entity.
"Native Hawaiian rights and benefits are still in jeopardy," she said. "As a people, these race-based allegations would continue until federal recognition for Native Hawaiians becomes a reality and the Hawaiian governing entity is formed."
Micah Kane, director of the Hawaiian homes department, echoed Apoliona's view.
"The game plan is to move the Akaka bill forward," he said. "Should we be successful there, many of these lawsuits would fall by the wayside."
William Burgess, attorney for the 15 plaintiffs, argued in the hearing that there are cases in which state taxpayers were allowed to sue over a federal law, but Mollway said that in these cases, the plaintiffs had additional grounds for a federal challenge. Later, Burgess agreed that it's likely that the case will become a "shadow" of the original, broad challenge to Hawaiian entitlements.
It also may involve fewer people: Mollway said she may dismiss three of the 15 plaintiffs who are of part-Hawaiian ancestry and thus could benefit from Hawaiian programs. They are: Sandra Puanani Burgess, Evelyn Arakaki and Donna Scaff.
Other, more substantive rulings are scheduled after Jan. 12. That's when Mollway is set to consider an argument that the case should be dismissed because Congress has given Hawaiians political recognition with the establishment of the Hawaiian Homes Commission, and that this special status defeats the allegation of racial discrimination.
After the January hearing, the court still must rule on what legal standards to apply to the case before deciding finally whether the programs are legal.
-------------
http://starbulletin.com/2003/11/18/news/story2.html
Honolulu Star-Bulletin, Tuesday, November 18, 2003
Judge in lawsuit challenging entitlements will likely drop all defendants except OHA
By Debra Barayuga
A federal judge indicated yesterday that she will probably remove the Department of Hawaiian Home Lands and the federal government as defendants in a lawsuit challenging the constitutionality of entitlement programs for native Hawaiians.
Such a ruling would leave the state Office of Hawaiian Affairs as the only defendant in the Arakaki vs. Lingle lawsuit. While U.S. District Judge Susan Mollway did not dismiss the two defendants yesterday, she issued a written note to attorneys that indicated she was inclined to do so when she issues a final ruling in about two weeks.
Her indication was seen as a victory for native Hawaiians, who already were celebrating federal Judge Alan Kay's ruling earlier in the day that struck down a challenge to Kamehameha Schools' Hawaiian-preference admission policy.
"We would celebrate the victory for Hawaiian Home Lands, but it is a victory we will take one step at a time," said Haunani Apoliona, board chairwoman for OHA.
"It's important to underscore to all native Hawaiian beneficiaries this still does not take the native Hawaiian community out of harm's way," Apoliona said.
Earl Arakaki and 15 other Hawaii residents sued the state, DHHL and the Office of Hawaiian Affairs in March 2002, challenging the agencies' constitutionality, contending race-based programs discriminate against non-Hawaiians. The federal government was later added as a defendant.
In court yesterday, Mollway questioned the plaintiffs' standing to file suit against the federal government and DHHL, which was set up under the federal 1959 Statehood Admissions Act.
The hearing addressed motions stemming from a September ruling by the 9th U.S. Circuit Court of Appeals that upheld two lower court dismissals of separate lawsuits that also challenged programs offered by the Office of Hawaiian Affairs and Department of Hawaiian Home Lands. The appeals court upheld rulings that said plaintiffs John Carroll and Patrick Barrett lacked the standing to challenge the programs.
The 9th Circuit ruled that to challenge the Hawaiian Homes Commission Act, the plaintiffs had to address the Admissions Act and argue its constitutionality.
Under Mollway's reasoning, if the plaintiffs do not have standing to challenge the Admissions Act, they do not have standing to challenge the Hawaiian Home Lands program, said state Attorney General Mark Bennett, who represents DHHL in the suit.
"We remain very optimistic that as this case goes on, we will be able to obtain judgment with regard to the claims against OHA as well, but we're taking this case one step at a time," he said.
Mollway, who ruled earlier that the plaintiffs have limited standing as state taxpayers to proceed, indicated that they cannot challenge state spending by DHHL or OHA that does not come from state tax revenues.
H. William Burgess, one of two attorneys who filed the suit on behalf of the plaintiffs, said if Mollway rules as she has indicated, their case will be reduced to a shadow of the original suit. "It's not the case we filed and want to proceed with, but we will follow through and we're in it for the long run," he said.
He had argued that state taxpayer standing is sufficient to challenge federal law, but could not cite any case law.
With OHA remaining as a defendant, the plaintiffs will only be allowed to challenge the constitutionality of using state tax revenue for OHA, he said.
Burgess agreed to the dismissal of three plaintiffs from the case: Sandra P. Burgess, Donna M. Scaff and Evelyn Arakaki. He said they do not have standing to sue because they have some degree of Hawaiian ancestry and are potential beneficiaries of OHA.
-------------
On November 19, 2003 attorney H. William Burgess sent a letter to Judge Mollway stating that, contrary to media reports, he does NOT agree to the dismissal of the three plaintiffs who have native ancestry. Mr. Burgess also reiterates his objection to the denial of standing for taxpayers to complain about ceded land revenues. Here is his letter, in full.
H.
William Burgess
Telephone: (808)
947-3234 C Fax: (808)
947-5822
Email:
The Honorable Susan Oki
Mollway
United States District
Judge Via Fax 541-1724
Re: Response to point
raised at hearing
Dear Judge
Mollway:
At the hearing on Monday morning,
November 17th, Your Honor asked if persons of some, but less than 50%, Hawaiian
ancestry would have standing to challenge laws benefiting persons of some, but
less than 50%, Hawaiian ancestry. I agreed that they would not. But
that does not mean any plaintiffs should be dismissed. I wondered why Your
Honor asked for their names.
The Star Bulletin article on Monday afternoon said, "Burgess agreed to
the dismissal of three plaintiffs from the case:
I did not agree to dismissal of any of the plaintiffs.
Plaintiffs challenge the OHA laws and the HHC/DHHL laws that exclude
Plaintiffs solely because they are not "native Hawaiian" (50% or more). All Plaintiffs are taxed to support
those programs but are excluded from receiving the benefit of their taxes
because they are not of the favored race (50% or more, i.e., not less than
one-half part of the blood of the races that inhabited the Hawaiian Islands
previous to 1778.) That is why all
plaintiffs have a stake in the outcome of this case.[1]
The severe restriction that Plaintiffs, as taxpayers, may not challenge
the validity of those laws (and the suggestion that the three plaintiffs of
some, but less than 50% Hawaiian ancestry, should be "dismissed as plaintiffs")
illustrates the flaw in the Standing order which has plagued this case for the
last year and a half. It is
based on the Court's assumption that no tax dollars are used to pay ceded "land
rents" to OHA or Hawaiian Homes. That is a finding of fact by the Court without the benefit of any
evidence and in contravention of the requirement that at this stage the Court
must accept the allegations of the complaint as true. It flies in the face of the statement by
the Hawaii Supreme Court in OHA v. State, "Indeed, on
at least four different occasions, the legislature has chosen to pay OHA its pro
rata share of ceded land revenue pursuant to HRS § §
10-12 and 10-13.5 by appropriating sums from the general fund." OHA v. State, 96
Standing is a "threshold" issue decided at the pleading stage. The Court determines whether the
plaintiff may or may not cross the threshold, come into court and present his or
her case for adjudication. Yes or
No. This Court has gone far beyond
Yes or No as to Plaintiffs' standing: It has made, and now seems inclined to make more, factual determinations,
for example relating to causation (whether there is any causal connection
between the Admission Act and the hundreds of millions of taxpayer moneys spent
for OHA and HHC/DHHL) and relating to ceded lands payments (whether the State
uses tax moneys to make those payments), without the benefit of
evidence, and then made and seems inclined to make more legal conclusions based
on those erroneous factual findings. The result of this misuse of the Standing order is to cut the heart out
of Plaintiffs' complaint at the pleading stage without ruling on the merits or
issuing an appealable order.
The Court's inclination
to release the
To satisfy the "case" or
"controversy" requirement of Article III, which is the "irreducible
constitutional minimum" of standing, a plaintiff must, generally speaking,
demonstrate that he has suffered "injury in fact," that the injury is "fairly
traceable" to the actions of the defendant, and that the injury will likely be
redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154
(1997), in reversing and remanding a decision of the Ninth
Circuit,
Thus, while a plaintiff must "set forth"
by affidavit or other evidence "specific facts" to survive a motion for summary judgment, Fed. Rule
Civ. Proc. 56(e), and must ultimately
support any contested facts with evidence adduced at trial, "[a]t the pleading
stage, general factual allegations of injury resulting from the defendant's
conduct may suffice, for on a motion to dismiss we 'presum[e] that general
allegations embrace those specific facts that are necessary to support the
claim.'
Very
truly yours,
H.
William Burgess
cc: Girard D. Lau, Esquire Via email and Fax: 586-1239
Charleen M. Aina, Esquire " " 586-1237
Sherry P. Broder, Esquire " "
531-8411
Jon Van Dyke, Esquire " " 956-5569
Robert G. Klein, Esquire " "
524-8293
Yuklin Aluli, Esquire " " 262-5610
Edward H. Kubo, Esquire
" " 541-3752
[1] Twelve
of the Plaintiffs also challenge the OHA laws that exclude them solely because
they are not "Hawaiian" (with any degree of the favored ancestry).