Ka Wai Ola - Office of Hawaiian Affairs, Volume 17, Number 9, 1 Kepakemapa 2000 — Federal judge opens OHA e!ection to non-Hawaiians [ARTICLE+ILLUSTRATION]

Federal judge opens OHA e!ection to non-Hawaiians

By Paula Durbin

ĪEN DAYS before the Sept. 8 deadline for filing to run as a candidate for trustee of the Office of Hawaiian Affairs, the dimensions of the November election await definition by both the Federal District Court for the District of Hawai'i and the Hawai'i Supreme Court. On Aug. 15, Federal District Judge Helen Gillmore granted Attomey William Burgess'

motion for a temporary restraining order and injunctive relief, filed in connection with Arakaki vs. State ofHawai'i, aimed at striking down the requirement that OHA candidates be of Hawaiian ancestry. Burgess' clients, including his wife Sandra, Thurston Twigg-Smith and a retired teacher from Boston, Ken Conklin, all outspoken opponents of Hawaiian entitleSee ELECTION on page 19

Hundreds gathered Aug. 28-Sept. 1 at the NBC Exhibition Hall for federal hearings on the S.B. 2899, the "Akaka Bill." Hours of testimony was heard by Hawai'i's congressional delegates and members of the Senate Committee on lndian Affairs and the House Committee on Resources. Meetings originally scheduled on the neighbor islands were rescheduled for O'ahu, to the ire of many residents. Hearings were disrupted daily by hecklers in support of total independence, though the panel made it clear that S.B. 2899 would not interfere in the pro-independence effort. Proponents of the bill spoke largely on the protection of Hawaiian rights and entitlements in light of Rice vs. Cayetano. See story in next month's issue.

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ments, contend the requirement amounts to unconstitutional racial discrimination. "It denies the 13 plaintiffs and 500,000 other voters the right to vote effectively," Burgess argued. On behalf of the State of Hawai'i, Deputy Attorney General Girard Lau countered the Hawaiians-only requirement would "minimally impact voting rights." The preliminary injunction prevents the State Office of Elections ffom refusing to accept nominations from non-Hawaiians seeking the trustee positions. It is in effect at least until Sept. 8 when the judge considers the merits of the State of Hawai'i's motion for summary judgment asking her to sustain the Hawaiians-only requirement. At the Aug. 15 hearing, Burgess also moved for summary judgment, but orally, asking the judge to invalidate the requirement. The judge deferred hearing both motions until Sept. 8, taking into consideration the late September date for formatting and printing the ballot. A permanent injunction could result. In deciding to grant the preliminary injunction, Judge Gillmore applied the two elements of the legal standard weighed in any consideration of a petition for extraordinary equitable relief. First, she determined Burgess" clients had demonstrated they would suffer irreparable hann if they could not fully exercise their right to vote, whieh she called "the civil right most basic to the constitutional system." Then, she determined the plaintiffs would likely prevail on the merits of the case. "Rice vx. Cayetano raises questions as to the continuing validity of the Hawaiians-only requirement," she said, citing the recent Supreme Court decision. At the Sept. 8 hearing, Judge Gillmore will also rule on OHA's motion to intervene in Arakaki. Onee again citing Rice, this time for the proposition that OHA is a state agency, the judge pointed out that, in piineiple, OHA is represented by the Office of Attomey General in the person of Deputy Attomey General Lau. "Why is OHA coming in separately?" she asked, instmcting all parties to brief the issue of separate status and separate counsel for the Office of Hawaiian Affairs. Sept. 8 is the deadline to fīle to mn as a candidate for one of the trustee positions open upon the expiration of the terms of Trustees Haunani Apoliona, Colette Machado, Hannah Springer and Donald Cataluna (one at-large and the Moloka'i/Lāna'i, Hawai'i, and Kaua'i/Ni'ihau seat, respectively). To date, 16 individuals, including Kenneth Conklin, have filed to mn for the atlarge position. Tmstee Springer is so far the only candidate for the Hawai'i seat. At presstime, no one had filed yet for the Kaua'i or Moloka'i races. ■

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