Hawaiian programs challenge delayed
By Vicki Viotti
Advertiser Staff Writer
A federal judge has delayed until Jan. 12 the first substantive decisions in a lawsuit that challenges government programs that benefit only Hawaiians, while lawyers argue over whether the federal government must be involved in the case.
Jeff Widener • The Honolulu Advertiser
The delay comes on the heels of Sunday's demonstration by thousands of people who marched through Waikiki in protest of such legal challenges, and it frustrated the plaintiffs' attorney, who had hoped hearings could begin much sooner.
Hawaiians turned out yesterday at federal court for a hearing where a lawsuit is challenging the constitutionality of Hawaiians-only programs.
They were scheduled to begin yesterday but on Friday, U.S. District Judge Susan Oki Mollway decided to to reinstate the federal government as a party in the case, known as Arakaki v. Lingle. Mollway based the reinstatement on a Sept. 2 decision by the U.S. 9th Circuit Court of Appeals that indicates the federal government should be a party in constitutional challenges to programs benefiting only Hawaiians.
Mollway, who a year ago dismissed federal authorities from the case, yesterday set Nov. 17 for arguments on whether they should remain. On that date she also will hear other arguments on how the Sept. 2 decision affects the Arakaki lawsuit.
Earl Arakaki is one of 16 surviving plaintiffs in the suit, which alleges the Hawaiian programs represent unconstitutional racial discrimination; Roger Grantham, among the original 17 filers, died March 24. Mollway told attorneys and onlookers packing the courtroom yesterday that it was the first time parties in the case had reconvened since Patrick Hanifin, one of the attorneys representing the Arakaki group, died June 14.
It won't be until Jan. 12 that Mollway takes up legal points that had been scheduled for yesterday. These include 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 or not the programs are legal.
The delay drew fire from plaintiffs' attorney H. William Burgess, who stood to acknowledge Mollway's condolences on his colleague's death and to plead for a shorter timetable.
"At this rate, your honor, few of us will be alive when this case reaches a final solution," Burgess said. "Justice delayed is justice denied."
Outside the courtroom, a group of Hawaiian homesteaders held signs in defense of the Hawaiian Homes Commission Act, which the lawsuit has challenged. Many of them were Neighbor Island residents who had flown in for Sunday's march, which was "a tremendous effort by all Hawaiians," said Tony Sang, who chairs the state Council of Hawaiian Homestead Associations.
"Today we're focusing on our own problem," Sang said.
Micah Kane, director of the state Department of Hawaiian Home Lands, said the pickets are aimed at raising awareness about how homesteading developments contribute to the larger state economy by providing jobs.
"The lawsuit by opponents of these programs shows how narrow their focus is," he said.
For their part, those opponents said in a written statement that they planned to form a tax-exempt organization to draw more people into their cause. They also charged that the state, the department and the Office of Hawaiian Affairs "are using millions of dollars of taxpayers' money just to fight this case and related cases and drag out the process of getting a fair decision."
Reach Vicki Viotti at vviotti@honoluluadvertiser.com or 525-8053.
