Dismissal of Hawaiian-only challenges upheld

By Vicki Viotti
Advertiser Staff Writer

The U.S. Ninth Circuit Court of Appeals has upheld two federal court dismissals of challenges to programs benefiting Hawaiians, but it is unclear if this ruling will affect a critical District Court case to be heard Monday.

The three-judge panel yesterday decided to affirm the decisions of District Court Judge David Ezra to dismiss two lawsuits in 2001 and 2002, filed respectively by Patrick Barrett and John Carroll. The suits were dismissed because Ezra found the plaintiffs had no legal standing to press a court case.

On Monday, the District Court will rule on part of the Arakaki v. Lingle case, in which the same programs again are being challenged. The court has found the plaintiff to have standing in this case.

Barrett, a Mo'ili'ili resident, applied unsuccessfully for a loan from the Office of Hawaiian Affairs and for a Hawaiian homestead lease. Carroll, a former Hawai'i Republican Party chairman, accused OHA trustees and state officials of violating his federal constitutional right by using revenues from the ceded lands for Hawaiian-only programs.

Ezra held that Carroll had no standing because he had never applied to use the revenues himself. In the other case, the judge found that Barrett had failed to demonstrate an injury from OHA because his loan application was insufficient and could be rejected for reasons other than race. And in the lease application, he had failed to sue the federal government as well as various state agencies. The federal government established the Hawaiian homesteading program.

Barrett's attorney could not be reached yesterday. Carroll said he believes the judges are "dead wrong," and maintained that he had made inquiries on a loan and was turned away, even though he did not file a written application.

Sherry Broder, who represented OHA, acknowledged that the ruling did not address the constitutionality of the Hawaiian-only entitlements. But she took encouragement from language in the ruling, in which the judges assert that any challenge to programs enabled by the state Constitution, such as Hawaiian Home Lands, also challenges the federal Admissions Act that established Hawai'i a state.

"If (the programs are) unconstitutional, the court is going to have to find that a portion of the admissions act is unconstitutional, too," Broder said.

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