Anti-OHA Appeal Rejected

Posted on: Thursday, November 12, 2009 Anti-OHA Appeal Eejected 9th Circuit Court upholds dismissal of lawsuit, sanction against lawyer By Gordon Y.K. Pang Advertiser Staff Writer A federal appeals court last week affirmed a lower court decision to dismiss a lawsuit that claimed the Office of Hawaiian Affairs is racially discriminatory. The 9th U.S. Circuit Court of Appeals also affirmed U.S. District Judge J. Michael Seabright's order that plaintiffs' attorney H. William Burgess pay OHA $2,308.90 in compensation for making what Seabright described as "frivolous arguments." Burgess said he is contemplating his legal options. An attorney for OHA said he was pleased with the decision. The lawsuit Kuroiwa v. Lingle was filed by Burgess on behalf of six plaintiffs characterized in the suit as "non-ethnic Hawaiians": James Kuroiwa Jr., Patricia A. Carroll, Toby M. Kravet, Garry P. Smith, Earl F. Arakaki and Thurston Twigg-Smith. Most of the plaintiffs were involved in previous lawsuits against OHA. The lawsuit charged that OHA exists to carry out "a racially discriminatory purpose to better the conditions of native Hawaiians and Hawaiians" at the expense of others. The lawsuit said money going to OHA from ceded land revenues should instead be benefitting all Hawai'i's people. But Seabright sided with the argument made by state attorneys that the issues raised by Burgess had already been litigated in the 2002 case Arakaki v. Lingle. Filed by Burgess on behalf of 16 taxpayers, the Arakaki lawsuit also sought to stop the state's funding of OHA on constitutional grounds. That case was ended in March 2007 when U.S. District Judge Susan Oki Mollway declared the plaintiffs did not have standing to bring their claims. The U.S. Supreme Court and 9th Circuit Court reviewed Mollway's decision in the Arakaki case and remanded the matter back to the judge. Burgess said Mollway declined to dismiss the case and suggested that he could file a new suit. On Aug. 27, 2008, Seabright dismissed Burgess' new lawsuit, ruling that the Kuroiwa case "lacked an adequate legal basis, and a reasonable inquiry would have revealed that the complaint is baseless in light of Arakaki." Burgess would have been able to avoid sanctions if kept his arguments to seeking a reversal of the Arakaki case, Seabright said. Instead, Seabright said, "Mr. Burgess put forth a series of frivolous arguments for why the court should not follow" the Arakaki ruling. As a result, the court "concluded that an appropriate sanction to deter repetition of this conduct would be for Mr. Burgess to pay a portion of OHA defendants' attorneys' fees for those services that are directly and unavoidably caused by the violation." The decisions are not a complete victory for the state and OHA. OHA sought $50,223.80 from Burgess to pay for fees paid to three attorneys from the law firm McCorriston Miller Mukai MacKinnon who assisted in the case. But Seabright said OHA and McCorriston attorney Robert Klein was not able to establish that all the firm's billable hours were a direct result of Burgess' frivolous actions. Klein, an OHA legal counsel, said yesterday: "The 9th Circuit affirmed that it will not tolerate the filing of frivolous cases against OHA or the state of Hawai'i and will sanction lawyers who misguide their clients into believing that they can continue to litigate issues that have no merit whatsoever." Burgess said he will ask the 9th Circuit Court for the three-member panel to rehear its decision or for an en banc review requiring a larger number of judges to hear the case. "The state, as trustee, has a duty to uphold the 1.2 million acres of the ceded lands trust for the benefit of all the people of Hawai'i, not just the Native Hawaiian beneficiaries of the trust," Burgess said. Klein said he was disappointed the court chose not to impose higher penalties against Burgess. Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com.

These ultracrepidarian critics fail to realize that it is expressly written in the statehood act that part of the proceeds of the so-called ceded lands are set aside for the betterment of the native Hawaiians as a condition for statehood. The state determined that 20% should be allocated to this. The 80% is for other purposes which benefit all residents. One of the purpose is for education which they insist on cutting back. The revenues were not to be put in the general fund which the state has done; which is in violation of the trust. Burgess, et al, like to misinform the public and twist things to create a division among the community that we never had prior to the coming of Conklin from Boston in 1992. They have openly declared and waged war against the native Hawaiians and have enlisted Hawai'i's businessmen to join in with them. I could give leeway to the settlers who are ignorant of the history and laws with conditions for statehood; but once they learn it, they shouldn't complain. It's because of our unique situation that the U.S. made a compact with us that no state has prior or after us becoming a "state". The locals that maintain ignorance, listen to these settlers as if they are correct in their arguments and fail to recognize the compact that is written into the statehood act. This is their biggest failing of not being familiar with the statehood act and Hawai'i's history. They still forget whose country they are living in which for some it's a violation of the laws of occupation being hostile occupants. It's well-known that they are trying to use reverse-racism to get their way as they have done on the U.S. continent. The Kingdom of Hawai'i still exists albeit under belligerent occupation and soon it will be time to pay the piper; especially when there is no treaty of annexation/cession. It is they who are revising history for their benefit. They have been put on notice and it shouldn't come as a surprise for them.

Tane

Replies

Tane November 15, 2009 at 8:59am

These ultracrepidarian critics fail to realize that it is expressly written in the statehood act that part of the proceeds of the so-called ceded lands are set aside for the betterment of the native Hawaiians as a condition for statehood. The state determined that 20% should be allocated to this. The 80% is for other purposes which benefit all residents. One of the purpose is for education which they insist on cutting back. The revenues were not to be put in the general fund which the state has done; which is in violation of the trust. Burgess, et al, like to misinform the public and twist things to create a division among the community that we never had prior to the coming of Conklin from Boston in 1992. They have openly declared and waged war against the native Hawaiians and have enlisted Hawai'i's businessmen to join in with them. I could give leeway to the settlers who are ignorant of the history and laws with conditions for statehood; but once they learn it, they shouldn't complain. It's because of our unique situation that the U.S. made a compact with us that no state has prior or after us becoming a "state". The locals that maintain ignorance, listen to these settlers as if they are correct in their arguments and fail to recognize the compact that is written into the statehood act. This is their biggest failing of not being familiar with the statehood act and Hawai'i's history. They still forget whose country they are living in which for some it's a violation of the laws of occupation being hostile occupants. It's well-known that they are trying to use reverse-racism to get their way as they have done on the U.S. continent. The Kingdom of Hawai'i still exists albeit under belligerent occupation and soon it will be time to pay the piper; especially when there is no treaty of annexation/cession. It is they who are revising history for their benefit. They have been put on notice and it shouldn't come as a surprise for them.

Tane
- Pomaikaiokalani > Tane November 15, 2009 at 9:30am
  
  There is no question that people like K. R. Conklin have openly declared and waged war on the rights of our people. K. R. Conklin and his people do this with the support of those of our own people of the Blood who are also violating the rights of our people. Just like many of our own people supported the overthrow of Queen Liliuokalani and her lawful government of the Hawaiian Kingdom in 1893, many Real People of the Hawaiian Blood are also behind the seriously violations of the rights of our people today. Like Queen Liliuokalani being betrayed by her own people who were on her cabinet, Jon Osorio has also been betrayed by his own people who withdrew from his case going back to the Hawaii Supreme Court. Allowing the FAKE State of Hawaii to use the Blood Quantum of being a Real "native Hawaiian" against Jon.
  Maka Ala Ke Aupuni Moi o Hawaii, o Pomai
  - Kamatose > Pomaikaiokalani November 20, 2009 at 8:27pm
    
    Isn't it ironic that NOW they say we're racists? Before we were just 'savages' and not fit to rule ourselves, so in come the almighty white man for the save. When does the time for being politically correct and nice stop?
    - Pomaikaiokalani > Kamatose November 20, 2009 at 8:41pm
      
      e Kamatose, Three native Hawaiians who were in the Court Case with Jon Osorio withdrew from the Court Case. If just one of the native Hawaiians would have remain with Osorio in the Court Case, the FAKE State of Hawaii could not have used the Blood Quantum against Osorio. There are many native Hawaiians of the Hawaiian Homestead Act who believe that everything belongs to those of the 50% Blood Quantum and no one else. There are those native Hawaiians who support the AKaKa BILL with that Blood Quantum belief. They believe that they are the REAL People of Hawaii. E Ola Mau Ke Aupuni Moi o Hawaii Nei, o Pomai
      - Kamatose > Pomaikaiokalani November 20, 2009 at 8:52pm
        
        I've always been proud of my Hawaiian blood. I'm all mix mix, but it's Hawaiian that I feel closest. I don't think those that are 50% would turn away their grandchildren if they were less. The arguement usually isn't seen with a wide perspective.
Pomaikaiokalani November 12, 2009 at 8:36am

Na'u Ka Hauoli, e Ululani
Ululani November 12, 2009 at 8:10am

"U.S. District Judge J. Michael Seabright's order that plaintiffs' attorney H. William Burgess pay OHA $2,308.90 in compensation for making what Seabright described as "frivolous arguments."

Mahalo e Pomai for reposting this :-)

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