Ka Wai Ola - Office of Hawaiian Affairs, Volume 1, Number 3, 1 April 1984 — OHA Attorneys: 'State Says it is Above the Law' [ARTICLE+ILLUSTRATION]

OHA Attorneys: 'State Says it is Above the Law'

The State of Hawaii on Apr. 12 asked Circuit Judge Edwin Honda to dismiss two OHA suits: OHA says it filed those lawsuits only after years of unsuccessful attempts to reach a fair out-of-court settlement. Basically, those suits seek a court order forcing the state to comply with the State Constitution and state law. As the result of a 1978 constitutional amendment, the State Legislature passed a law whieh says OHA shall receive "20 percent of all funds derived from the publie land trust" to be used "for the betterment of the conditions of native Hawaiians."

OHA Trustees say that should have heen the end of it. The language in the statute is clear and unambiguous. However, from the beginning, the State Department of Transportation (DOT) refused to hand over OHA's percentage of revenue from airport and harborfacilities built on trust lands. And last September, the State Attorney General approved the DOT's decision to withhold those revenues. Because of that opinion, the OHA Board of Trustees hired attorneys Boyce Brown and David Schutter to seek a court order asking the DOT to follow the law. The State's reply, in effect, was "you can't sue us because we ean do no wrong."

The Attorney General was invoking a principal ca!led "sovereign immunity" whieh dates back to the time when European sovereigns claimed they ruled by divine mandate. Their decisions were immune from any question or challenge. Today, in 1984, the State of Hawaii is claiming that it is the sovereign and eannot be sued without permission. OHA attorney Boyce Brown told the court, "the State is saying it is above the law." This doctrine of sovereign immunity is an outdated principal of law whieh has been thrown out by more than half the states in this country.

OH A s attorneys argued īn court that, in any case, sovereign immunity does not apply in the current lawsuits. Brown maintained that OHA's action is not against the State as such, but against state officials who are refusing to carry out their legal duty. Brown cites an 1882 U.S. Supreme Court decision whieh states "No man in this country is so high that he is above the laws . . . All the officers of the government from the highest to the lowest are creatures of the law and are bound to obey it." Deputy Attorney General James Dannenberg called OH A's suit "a naked atSee State, pg. 2

OH A attorneys David C. Schutter, left, and Boyce Brown express confidence in front of First Circuit Court following arguments presented before Judge Edwin Honda in OHA's suit against the state.

• State, from pg. 1 tempt to reach into the public treasury and take out considerable money." In rebuttal, Brown pointed out that the revenues being sought by OHA are not State funds, but are generated by a special trust fund created by Congress, as a condition of statehood, from lands whieh are owned by the Crown and the Kingdom of Hawaii before the illegal overthrow of the monarchy in 1893.

Dannenberg told the court OHA has no right to sue just because it disagrees with the Attorney General's opinion that OH A is not entitled to revenues generated by airports and harbors on trust land. OH A attorney.Schutter replied that the Attorney General apparently is claiming the authority to thumb his nose at the U.S. Congress, the 1978 Constitutional Convention, the voters of Hawaii who ratified the constitutional amendments creating OHA and the State Legislature whieh established OHA's 20 percent share of the puhlie land trust. When the Attorney General attempts to overrule these authorities, Schutter said, the only remaining course of action is to appeal to the courts, and that is what OHA is doing. Judge Honda indicated it would be several weeks before he rules on the arguments. At press time, no decision had been issued.