Challenge to Hawaiians-only benefits dismissed
By Yasmin Anwar
Advertiser Staff Writer
A federal judge yesterday dismissed a lawsuit challenging state-backed Hawaiians-only entitlements, finding that plaintiff Patrick Barrett had not suffered a "concrete injury" that the court can remedy.
Deborah Booker • The Honolulu Advertiser
However, Barrett's lawyers say their client will likely proceed with his mission to make Hawaiian benefits available to all the state's residents, either with an appeal, a new lawsuit or both.
Attorney Robert Klein, second from right, leaves the federal courthouse after successfully representing Hawaiian homesteaders in a case brought by Patrick Barrett.
"We will prevail in the end," said Patrick Hanifin, the only representative for Barrett at yesterday's hearing in the much-talked-about Hawaiian rights case.
In a rare rejection of legal standing, U.S. District Chief Judge David Ezra concurred with lawyers for the Office of Hawaiian Affairs and Hawaiian homesteaders, who argued that Barrett had not made serious attempts to apply for benefits.
Ezra said constitutional challenges should be "genuine challenges" and not brought by "people who are being recruited by lawyers or others for the purpose of making a philosophical challenge." However, he did not rule on the merits of the case.
Barrett, a disabled 53-year-old Mo'ili'ili resident, filed a lawsuit eight months ago challenging the legality of a 1978 state constitutional amendment that created OHA, adopted the federal Hawaiian Homes Commission Act, and laid the foundation for native gathering rights on private property.
He charged that race-based programs violate 14th Amendment guarantees of equal protection.
After filing his lawsuit, Barrett applied for a small-business loan from OHA and a Hawaiian Home Lands lease, but did not fully complete his applications. Nor did he have a business plan, Ezra pointed out.
"A plaintiff must show that he is able and ready to compete for that benefit and he would be ready and willing to use that benefit should it become available," Ezra said.
Hawaiian community leaders applauded the dismissal, relieved that thousands of dollars spent on attorney fees had not gone to waste.
OHA had committed an initial $200,000 to the effort, and the state Department of Hawaiian Home Lands lent $600,000 to the state Council of Hawaiian Homestead Associations for their legal defense against the Barrett challenge.
"Our lawyers did it, they won," said OHA Chairwoman Haunani Apoliona yesterday following Ezra's verbal summary of his 30-page written decision.
However, she and others warned that Hawaiians must gird for more challenges.
"Hawaiian entitlements are going to continue to be challenged, and OHA needs to be as strong as it can to minimize future attacks," said Clyde Namu'o, OHA's newly appointed administrator.
Indeed, Barrett's lawyers say they have several options and see Ezra's ruling as more of a road map than an obstacle.
"We see this as certainly a setback but only a temporary setback," Hanifin said.
He said Barrett can appeal the ruling to the 9th U.S. Circuit of Appeals, file a new lawsuit with additional plaintiffs or refile the Barrett case addressing Ezra's concerns.
In his decision, Ezra said Barrett's challenge to the Hawaiian Home Lands program could not proceed because the program had been created in 1921 by Congress, and the federal government was not named as a party in the case.
As for Native Hawaiian gathering rights, he concluded that Barrett had not shown an interest in exercising those rights.
Hanifin is a Harvard law school graduate who last year helped 13 non-Hawaiians win the right to run for the OHA board. His co-counsel is William Helfand, a Houston attorney who has launched several successful constitutional challenges to affirmative action programs on the Mainland.
The Barrett case was anchored in last year's U.S. Supreme Court ruling that struck down OHA's Hawaiians-only voting restriction as unconstitutional.
