Barrett's standing on OHA constitutionality questioned

By Jessica Webster
Advertiser Staff Writer

U.S. District Chief Judge David Ezra said in a hearing yesterday that he will announce in a few weeks whether to dismiss a federal lawsuit challenging the constitutionality of the Office of Hawaiian Affairs.

Office of Hawaiian Affairs attorney Sherry Broder yesterday called bogus Patrick Barrett's claims of discrimination in the rejection of an OHA business loan he had sought. Deborah Booker • The Honolulu Advertiser

Ezra indicated his ruling will be limited to whether Barrett has that legal standing and won't cover the merits of his lawsuit.

If Ezra dismisses the case, Barrett's lawyers are poised to show up in the 9th U.S. Circuit Court of Appeals. If Ezra does not dismiss the case, OHA representatives say they're ready to "go all the way" with an appeal.

Barrett's challenge comes on the heels of the U.S. Supreme Court's Rice vs. Cayetano ruling in which the court ruled that OHA could not restrict its elections to people of Hawaiian ancestry. Ezra initially had dismissed Rice's claim.

Barrett said he's "no Freddy Rice," but his demands for equal treatment are similar.

Barrett, 53, who is disabled and is from California, is challenging the state constitutional amendment that created OHA, adopted the federal Hawaiian Home Lands Program and laid the foundation for Hawaiian gathering rights on private property.

Barrett is seeking a "race neutral analysis" of his applications to OHA for a small loan for a copy-machine business and to the Hawaiian Homes Commission for a dollar-a-year homestead.

OHA attorney Sherry Broder said Barrett's complaints of discrimination are bogus. Other lawyers defending programs for Hawaiians say Barrett is a pawn being used by people with a grander scheme to slowly destroy any and all Hawaiian-only programs.

Broder said Barrett did not complete the applications before he filed his complaint, and thus he failed to demonstrate injury because he was never denied benefits. She contended that because Barrett is disabled and has not worked for several years, his intentions to start a printing business are not legitimate.

"This really is a fabricated case," said Broder. "The United States Constitution requires that there be an actual case, not just a philosophical difference. He doesn't have a real dispute or a real controversy ... and he just doesn't meet the test of credibility."

Broder notes that Barrett filed his lawsuit 25 days before he applied for a homestead.

Ezra did not question Broder during her statement, but repeatedly queried Barrett's attorney William Helfand about Barrett's intentions or lack of intentions.

"There's a fine but fairly concrete line drawn by the Supreme Court between someone who brings a complaint because of a philosophical difference, and someone who tries to exercise or participate in a right, but is deferred or thwarted somehow," Ezra said. "Federal courts used to grant standing to anyone ... that is no longer the case."

Ezra used several analogies to quiz Helfand.

"There was a time when restaurants would not admit certain races of people to eat," said Ezra. "Now, for someone who was that race, but never had any intention of using the restaurant, never went to restaurants, lived in the country and never wanted to go to a restaurant ... that person cannot be recruited to challenge those laws. You have a client who didn't even apply when he filed his complaint."

Barrett's attorney disagreed, and asserted that his client's intentions are not known to anyone but his client.

"There's no evidence that Mr. Barrett has a philosophical difference with OHA, or that he was not intending to utilize the benefits," said Helfand. "Mr. Barrett has a right to race neutral consideration and he is ready and able to apply if you give him a race neutral analysis."

Ezra's courtroom was filled to capacity yesterday with interested parties, OHA representatives and media.

OHA chairwoman Haunani Apoliona said she was pleased with his line of inquiry. "He did raise some questions as to this being a shallow challenge," she said.

A handful of Freddy Rice supporters joined in front of the courthouse following the morning's arguments. "I feel that Barrett has good standing as an American citizen, and under the law, he has the rights of an American citizen. He has a right to apply," said Kealoha Kuhea.

Ezra said he hopes both sides and the public will understand the complex and technical nature of this case when he releases his written decision in a few weeks.

"The public may look upon this motion such that it is a referendum on the merits of the state law," Ezra said. "But it's simply not a challenge on the merits."