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The Honolulu Advertiser
Posted on: Wednesday, September 4, 2002

Feds no longer target of lawsuit

By Vicki Viotti
Advertiser Staff Writer

The federal government has been dismissed as a target of a lawsuit challenging the constitutionality of spending state tax dollars on Hawaiians-only programs offered by the state Department of Hawaiian Homelands and the Office of Hawaiian Affairs.

However, yesterday's ruling by federal Judge Susan Oki Mollway is not expected to cause much of a ripple in the lawsuit, which originally sought to shut down the agencies when it was filed in March on behalf of a group of 16 Hawai'i residents.

In May, Mollway had ruled that those residents have legal standing in the case only because they are state taxpayers.

Yesterday, she told their attorneys, Patrick Hanifin and H. William Burgess, that the best result they could expect if they win is that the Hawaiian-only programs would be barred from using state tax money. The ruling would not shut down the agencies because they could still use money from land rent and other nontax sources, Mollway said.

Mollway granted attorneys from the U.S. Department of Justice their request for dismissal of the federal government from the case, leaving the state and OHA to defend programs benefiting only those of Hawaiian ancestry.

"The only standing you have is as state taxpayers," Mollway told Hanifin. "It seems to me that there's no federal statute that I would have to look at."

She was unconvinced by Hanifin's argument that U.S. attorneys are needed to defend the federal Admissions Act. That law is not at issue because it never dictated what funds would support such programs, Mollway said.

In the next few months, Hanifin said the court will consider what legal standard will be used in judging the constitutional question.

The lawsuit is based on the U.S. Supreme Court's landmark Rice v. Cayetano decision of Feb. 23, 2000, which struck down the Hawaiians-only requirement to vote in OHA elections.

Reach Vicki Viotti at 525-8053 or vviotti@honoluluadvertiser.com.