Ka Wai Ola - Office of Hawaiian Affairs, Volume 22, Number 12, 1 Kekemapa 2005 — Rehearing denied in Arakaki suit [ARTICLE+ILLUSTRATION]

Rehearing denied in Arakaki suit

Case will return to loeal federal court for trial on state tax issue

By Sterling Kini Weng Publicatiūns Editūr On Nov. 7, the 9th U.S. Circuit Court of Appeals denied a rehearing request by the plaintiffs in the lawsuit that seeks to have OHA and other Hawaiian programs declared unconstitutional. The case will now return to federal district court for a retrial of the only remaining issue in the lawsuit: whether OHA ean legally eonhnue to use state tax funds, whieh amount to about 10 percent of the agency's total $28 million annual budget. William Burgess, an attorney for the plaintiffs, told The Honolulu Advertiser that he was not surprised the appeals court decided not to reconsider the case and that the plaintiffs will wait until after the lower court issues a new ruling on the remaining portion of the lawsuit before they decide whether to appeal to the U.S. Supreme Court. The lawsuit, currently called Anikaki v. Lingle, was originally filed three years ago by 18 state taxpayers, led by retired Honolulu polieeman Earl Arakaki, who claimed that by discriminating against non-Hawaiians, OHA, the Department of Hawaiian Home Lands and other programs violate the equal protection clause

of the 14th Amendment to the U.S. Constitution. In 2004, U.S. District Iudge Susan Oki Mollway dismissed the case, ruling that, as state taxpayers, the plaintiffs laek standing to challenge federally mandated programs, such as the Department of Hawaiian Home Lands and OHA's use of ceded lands revenue. She also rejected the plaintiff's challenge of the funding OHA receives from state tax revenue, because, she said, Congress was still in the process of determining the political status of Native Hawaiians, and the court shouldn't interfere. In August, a three-member panel of the San Francisco-based appeals court partially affmned Mollway's ruling. The appeals court ruled that the plaintiffs did indeed laek standing to challenge federal programs; however the panel reinstated the state tax revenue challenge. In their request for reconsideration, the plaintiffs asked that either the same three-member panel rehear the case, or that an ll-member panel of judges review the ruling. The group argued that the court's inihal ruling ran counter to previous 9th Circuit and U.S. Supreme Court rulings, and that it set "unprecedented restrictions" on taxpayer challenges. The court, however, rejected those arguments. Ē3

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HūWūiian homesteoders lend support at ū court hearing on the Amkaki case. Photo: Sterling Kini Wong