Kenneth R. Conklin, Ph.D.
The Hawaiian Homes Commission Act passed by Congress in 1921 set aside 203,500 acres of land in the Territory of Hawaii where land for houses could be leased (but never sold) only to people who have at least 50% Hawaiian native blood quantum. The well-intentioned, benevolent idea was to help poor, downtrodden native Hawaiians (but not any other poor, downtrodden residents of Hawaii). In 1959 the Hawaii Statehood Act, passed by Congress and ratified by a vote of Hawaii's people, included a provision that the HHCA is incorporated into the Constitution of the State of Hawaii and cannot be amended without permission of Congress. Congress later amended HHCA to allow people with as low as 25% native blood quantum to inherit a lease (so that a child of a lessee could have the lease even if that 50% quantum lessee had made a baby with someone having no native blood).
HHCA requires that for the first 7 years of a lease, property tax must be zero. Thereafter each county can set whatever property tax it chooses.
Throughout the years since 1959, counties have set property taxes for houses on HHCA lands at various flat amounts from zero to $125 per year (following expiration of the mandatory zero rate for the first seven years). Meanwhile owners of houses not on HHCA lands must pay many hundreds or thousands of dollars per year depending on the county tax rate and the assessed value of the house and the land.
Beginning in 2006 and 2007, a few homeowners in Hawaii paid their property taxes under protest, citing racial discrimination. They demanded a reduction in property tax to the same amount paid by HHCA lessees. The tax appeal court rejected their protest. The cases in various counties were consolidated and reached the Hawaii Supreme Court, which dismissed the plaintiffs on grounds they lacked standing because they had not shown any desire to apply for a HHCA lease. Plaintiffs pointed out that their complaint was about taxes and racial discrimination, and that they had suffered injury by being forced to pay far higher property taxes than HHCA lessees and would be prohibited from getting a HHCA lease because they lack Hawaiian native blood. But the Hawaii Supreme Court denied their request for reconsideration. Thereupon they appealed to the U.S. Supreme Court.
Attorney H. William Burgess, head of the Aloha For All society, was the attorney representing the plaintiffs for all actions in Hawaii, including the Hawaii Supreme Court. He maintains a webpage which includes a compilation of many legal documents and exhibits, and some news reports cited in his legal briefs, at
Below are news reports and commentaries anticipating and following the appeal to the U.S. Supreme Court, in chronological order. Some of the news reports include links to legal documents or previous news reports.
Hawaii Reporter, Saturday, September 24th, 2011
Lawsuit Challenging Property Tax Rates for Native Hawaiians on Home Lands Moves to the Nation's Highest Court
by Malia Zimmerman, editor
Should native Hawaiians living on Hawaiian Home Lands,
or state lands set aside for native Hawaiians with a 50 percent or higher blood quantum, pay a lower property tax rate than other Hawaii residents?
As of September 15, 2011, a lawsuit challenging this very issue is being appealed to the U.S. Supreme Court in Corboy vs Louie.
Dr. John Corboy, a resident of Molokai, and other Hawaii residents who pay property taxes in the state, but are not of native Hawaiian ancestry, lost their court challenge against the state in the Hawaii Supreme Court.
But Washington D.C. attorney Roy Englert of Robbins Russell Attorneys at Law,
a firm that describes itself as focusing on "high stakes legal proceedings", filed an appeal on September 15, 2011, to the nation's highest court.
H. William Burgess, a Hawaii attorney who has challenged a number of racially based state government programs including this one, said the case is important.
"Homestead lessees use county services like police and fire protection and many other services and infrastructure like streets, beaches and parks and others but pay little or none of the costs. As Chief Justice John Marshall said in McCulloch v. Maryland, ‘The power to tax involves the power to destroy.'
The use of such a destructive power by the state and counties to discriminate between homeowners based solely on their racial ancestry, destroys the concept of equal protection at its most direct and basic level."
The premise of the lawsuit, Burgess said, is: "In Rice v. Cayetano (2000) the Supreme Court held that ‘native Hawaiian' is a racial classification (and therefore unconstitutional under the 15th Amendment as a voting eligibility requirement); but the state continues to use the same classification to determine eligibility for a 'homestead lease' program that entitles lessees to significant property tax exemptions for the first seven years. And each of the four counties extends the special exemption indefinitely. As a result, petitioners pay significantly more in property taxes each year than do "native Hawaiians" who are homestead lessees. Petitioners challenged this differential tax treatment in the Hawaii state courts, under the Equal Protection Clause of the Constitution of the United States."
An legal analysis of the Hawaii case provided by Burgess to the media said "On appeal, the Hawaii Supreme Court did not reach the merits of the challenge, finding that petitioners lacked standing under Hawaii law because they (a) were really only challenging their ineligibility to be homestead lessees, and (b) had failed to seek homestead leases. The state court's standing analysis was completely untenable under either state or federal law..."
But the state of Hawaii is promising a fierce fight in the nation's highest court. A statement issued to Hawaii Reporter from Joshua A. Wisch, Special Assistant to the Attorney General, simply said: "The Department of the Attorney General agrees with the Hawaii State Supreme Court's decision to dismiss the challenge to the tax exemptions for homesteaders under the Hawaiian Homes Commission Act. We will take all steps necessary to preserve those exemptions."
SCOTUS blog, September 27, 2011
Petition of the Day
by Joshua Matz
Corboy v. Louie
Issue(s): (1) Whether petitioners have standing to seek a refund of their own taxes; and (2) whether the Equal Protection Clause precludes a state or municipality from creating tax exemptions that are available only to members of a certain race.
Certiorari stage documents:
Opinion below (Haw.)
Petition for certiorari
Hawaii Reporter, Wednesday, September 28th, 2011
New Hawaii Cert Petition: Is Hawaiian Homes Property Tax Exemption Racial Discrimination?
by Robert Thomas
In a cert petition filed last week, five Hawaii taxpayers argue that they have standing to challenge the constitutionality of property tax exemptions conferred on lessees of Hawaiian Homesteads. Only "native Hawaiians" are eligible to lease homestead land, and thus only those possessing the appropriate blood quantum are entitled to the tax exemptions.
The petitioners are not "native Hawaiians" and thus are not lessees, and paid their property taxes under protest. When they sought refunds in the Hawaii Tax Appeals Court and argued that they should also be exempt, that court concluded that "native Hawaiian" was not a racial classification and did not review the tax exemption with strict scrutiny. Instead, the court upheld the exemption under rational basis review.
The Hawaii Supreme Court vacated the Tax Court decision and dismissed for lack of jurisdiction, holding the petitioners lacked standing to challenge the exemption since they had not sought homestead leases (leases for which they were ineligible because they are not native Hawaiians).
The petition presents the following question:
In Rice v. Cayetano, 528 U.S. 495 (2000), this Court held that a state classification of voters according to whether they are "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778" was an impermissible racial classification under the Fifteenth Amendment. Respondents have employed the same classification to determine whether a taxpayer is eligible for certain long-term leases that entitle lessees to significant tax exemptions. No equivalent exemption is available to petitioners because they do not fall within that racial classification.
Petitioners paid their taxes under protest and then sought refunds from their respective counties on the ground that their tax bills resulted from a racial classification inconsistent with the Constitution. The Hawaii courts declined to apply Rice or subject the classification to strict scrutiny. The question presented here is:
Whether the Hawaii courts erred in failing to recognize that petitioners have standing to seek a refund of their own taxes and that the Equal Protection Clause precludes a State or municipality from creating tax exemptions that are available only to members of a certain race.
Because the petition draws into question the constitutionality of the Hawaiian Homes Commission Act and the constitutionality of a part of the Hawaii Admission Act, the U.S. Solicitor General was served a copy. It will be interesting to see if the SG adds its views.
The state's Brief in Opposition, if any, is due in 30 days.
Lakeland Times (Wisconsin) 12/2/2011
Hawaiian lawsuit could put new focus on treaty rights
High court decision could trigger review of past cases, experts say
News analysis by Richard Moore
Though there are distinct differences, a lawsuit over the legal rights of native Hawaiians now pending in the U.S. Supreme Court could place a new focus on Native American treaty rights nationwide, including in northern Wisconsin.
The high court has not decided whether it will even hear the case, Corboy v. Louie, which challenges lower property tax rates for native Hawaiians on Hawaiian Home Lands. The properties in question are state lands set aside for native Hawaiians with a blood quantum of at least 50 percent.
That natives pay lower property tax rates than other Hawaiians, Corboy and other petitioners in the case say, is nothing more than racial discrimination and a blatant violation of the equal protection clause of the U.S. Constitution. The Hawaiian Supreme Court sided with the native Hawaiians, however, and the petitioners subsequently filed their claim with the U.S. Supreme Court in September.
In one sense, legal experts argue, the Corboy contentions could be applied in places such as Wisconsin, where Indians are given more expansive hunting and fishing rights in ceded territories. In other words, according to this view, an unlimited harvest of fish for individual Indians is inherently discriminatory when bag limits are in place for non-Indians.
But there are distinctions, other observers point out. For one thing, they argue, treaty rights in northern Wisconsin apply to tribal entities, whereas the property tax advantages in Hawaii accrue to individuals, not to groups or classes of people.
The Hawaii details
Dr. John Corboy, a resident of Molokai, is the principal petitioner in the lawsuit. According to the claim filed by him and his attorneys, Corboy and other petitioners are Hawaiian citizens and municipal taxpayers who are denied tax advantages others enjoy simply because of their race.
"Hawaii's constitution and the Hawaiian Homes Commission Act (HHCA) make 'native Hawaiians' eligible to hold homestead leases, which - unlike property held by Hawaiian citizens who do not meet that racial definition - are exempt from property taxes," the petition states. "Because petitioners do not possess a sufficient quantum of the 'blood of the races' required by the HHCA, they are categorically ineligible for those valuable tax benefits."
The HHCA provides for long-term homestead leases of 99 years, which can be renewed for another century for only $1 a year. However, only native Hawaiians are eligible for the leases, which the law defines as "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778."
That is an explicitly racial definition, Corboy and his attorneys contend. And the statutes contain other racial characteristics, they maintain: The leases cannot be transferred to nonnative Hawaiians, while on a lessee's death only native Hawaiians or close relatives who are at least one-quarter Hawaiian may succeed to the lease.
It's not only statutory, either, it's in the Hawaiian Constitution, and so the preferential treatment actually arcs back to Congress. As the petition states, when Hawaii entered statehood in 1959, the federal Hawaii Admission Act required Hawaii to adopt the HHCA in its Constitution. Congress also prohibited Hawaii from making changes in the qualifications of homestead lessees without congressional approval.
"Because of this statutory scheme, only native Hawaiians are granted homestead leases, and those who receive such leases pay little, if any, property taxes, thus contributing virtually nothing to pay for their counties' services and infrastructure," the petition asserts. "By contrast, petitioners and other Hawaiian citizens who do not meet the HHCA's racial criteria enjoy no such benefit. Petitioners and thousands of other similarly situated Hawaiian property holders thus pay more in annual property taxes than homestead lessees pay."
The discrimination is not merely an abstract one, the petitioners argue, but has an economic impact.
To cite one example, they argued, the city and county of Honolulu Real Property Tax administrator projected an average residential real property tax assessment of $1,817 per parcel in 2009-10, but homestead lessees were assessed only $100 per parcel.
The legal arguments
For the petitioners, the crux of the case can be found in a 2000 Supreme Court decision in Rice v. Cayetano.
In the determination, the Supreme Court held that 'native Hawaiian' is a racial classification. In the case, the court determined that Hawaii could not restrict voter eligibility for the Board of Trustees of the Office of Hawaiian Affairs to those of native Hawaiian descent, which it defined as "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778."
Doing so was an impermissible racial classification under the Fifteenth Amendment, which prohibits any government in the United States from denying a citizen the right to vote based on "race, color, or previous condition of servitude," the justices ruled.
"Respondents have employed the same classification to determine whether a taxpayer is eligible for certain long-term leases that entitle lessees to significant tax exemptions," the petition states. "No equivalent exemption is available to petitioners because they do not fall within that racial classification."
And so, among other things, the petitioners argue, the question is whether the Equal Protection Clause of the U.S. Constitution precludes a state or municipality from creating tax exemptions that are available only to members of a certain race.
"If the racial classification at issue involved African Americans and Caucasians, those arguments would likely have been laughed out of court," the petitioners wrote. "They should be taken no more seriously just because this case involves native Hawaiians."
All such classifications must face strict scrutiny under the Fourteenth Amendment's equal protection guarantee, they concluded. The court has long considered distinctions between citizens solely because of their ancestry as odious by their very nature, the petitioners asserted.
"Hawaii's taxation scheme directly offends that constitutional principle by awarding significant governmental benefits based expressly on the quantum of the 'blood of [certain] races' coursing through a citizen's veins," the petitioners wrote. "This Court should grant certiorari to confirm that the same form of racial discrimination held to violate the Fifteenth Amendment in Rice v. Cayetano likewise violates the Fourteenth Amendment, and that the Hawaii courts cannot insulate Hawaii's clear constitutional violations from federal review."
But Hawaii begs to differ. Among other things, the state argues, the tax exemption is not based on the race of the taxpayer at all but rather on whether the taxpayer is a homestead lessee of HHCA land.
Indeed, the state contends, not every native Hawaiian seeks a homestead lease. That being the case, there are native Hawaiians who do not enjoy the property tax exemptions, just like nonnative Hawaiians, and that renders moot the fact that only native Hawaiians can obtain a lease and tax exemption.
That argument is ridiculous on its face, the petitioners countered.
"For starters, respondents' contention that the tax exemption depends only on a taxpayer's status as a homestead lessee status and not on race ... ignores the undisputed fact that petitioners are statutorily ineligible to hold such leases because they do not meet the HCHA's explicitly racial definition of 'native Hawaiian,'" the petition states. "Suppose a public university offered a 'Special Scholars' program, for which only white students were eligible, and that all Special Scholars were awarded a full scholarship. Could university officials really suggest that the scholarships were awarded on racially neutral grounds? Of course not. But that is precisely the tortured logic respondents cling to here by maintaining that tax exemptions go to homestead lessees without regard to their race."
What's more, the petition continues, the high court has previously rejected the argument that an exemption or restriction is not race-based because not all native Hawaiians claim it or are restricted by it. In Rice v. Cayetano, the petitioners observed, the court held that just because a "class defined by ancestry" does not include all members of the race is not enough to make the classification race neutral.
Relevant in Wisconsin?
Some legal and political observers believe the case is relevant in Wisconsin because treaty rights extend certain privileges to Indians in ceded territories - such as more expansive hunting and fishing - that nonIndians in those areas cannot enjoy.
Others, however, disagree with that assessment. The case they cite in doing so is Morton v. Mancari (1974), in which hiring preferences given to Indians within the Bureau of Indian Affairs was challenged as unconstitutional under the Fifth Amendment's due process clause.
The high court upheld the hiring preferences, however.
For one thing, the court ruled, federally recognized Indian tribes have a "special relationship" with the federal government because of the Indians' unique history with the federal government. While racial discrimination is not justified in most situations, the court determined, there are times when preferential treatment is justified in the public interest. In other words, special treatment to Indians was constitutionally acceptable so long as it was "tied rationally to the fulfillment of Congress' unique obligation toward the Indians."
Because Congress ratified its obligations in Indian treaties, the preferential treatment awarded to Indians under those treaties are in fact rationally tied to those obligations, according to this point of view.
For another thing, the Mancari court observed, the Constitution directly authorized special treatment of Indian tribes in the Indian Commerce Clause and in the Treaty Clause.
That constitutional language points to an important distinction between the native Hawaiian issue and Indian treaty rights, these observers say. Indeed, they say, the privileges granted by Congress are granted to Indians only as members of quasi-sovereign tribal entities, not as individuals with a specified blood quantum.
The Mancari decision upheld that distinction, saying different treatments carved out in treaties are based on the distinction between tribes and nontribes, rather than between Indians and non-Indians.
The question is, is Mancari still a sustainable decision, or has it been effectively overturned by more recent decisions, such as Adarand v. Peña?
In Adarand, a 1995 case, the legal issue was whether the presumption of disadvantage based on race alone, and the allocation of favored treatment based on that presumption, amounted to a discriminatory practice that violated the equal protection clause of the 14th Amendment, not to mention the due process clause of the Fifth Amendment.
In their decision, the justices held that racial classifications recognized by the federal government had to be reviewed under a standard of "strict scrutiny," meaning those classifications had to be narrowly defined to further compelling governmental interests.
To say it another way, the court said it was no longer sufficient to award preferential treatment simply by presuming that members of a certain race were disadvantaged because of their race.
In Adarand, the issue was the awarding of a contract to a construction company based solely on the race of the owner, a minority presumed to be disadvantaged, even though other certified companies submitted lower bids. The court rejected that presumption.
In the case of Indian treaty rights, the question is, even if the special privileges awarded to tribes once represented a constitutionally justifiable compelling interest for the federal government, is that still the case? Is there still a compelling interest to award those preferential and discriminatory benefits, or are they based on a now constitutionally invalid presumption of racial disadvantage?
The petitioners in the Corboy case doubt the ongoing legitimacy of the Mancari decision.
"There is a substantial question as to whether Mancari remains good law after Adarand v. Peña," the petition stated.
The outcome of the Corboy case could thus set the stage for - or even provide - a review of the Mancari decision and its broad application of special rights for Indians based on presumption and racial classification and of the Adarand decision, which appears to overturn Mancari by narrowing special rights for minorities.
A resolution of that issue could then lead to a review of federal rulings affirming hunting and fishing rights in ceded territories, namely, the 1974 decision by judge George Boldt reaffirming the "original" rights of Washington's Indian tribes to 50 percent of the annual catch at "usual and accustomed grounds and stations," and rulings by judges James Doyle and Barbara Crabb formally acknowledging traditional fishing spearfishing practices on ceded lands, as well as the right of tribes to take a "safe harvest" of fish - the amount that could be taken without depleting the resource. They, too, based their decision on the "original" rights preserved in ratified treaties, which were themselves justified by a compelling government interest.
Again, though, the question would be, does that compelling interest to discriminate still exist as it did when the treaties were completed in 1837 and 1842 - before statehood in Wisconsin - or would the American constitutional principle of nondiscrimination now trump treaties made before the entry of those lands into the United States?
Richard Moore can be reached at firstname.lastname@example.org
Honolulu Star-Advertiser, December 12, 2011 hardcopy
Published on newspaper website at 1:30 AM.
Court might hear case testing state benefits for Hawaiians
By Ken Kobayashi
The U.S. Supreme Court could announce as early as today whether the justices will review a case that could produce a landmark ruling on the legality of government benefits to Native Hawaiians under the Constitution's equal protection clause.
Five Hawaii residents who are seeking the same property tax exemptions granted to Native Hawaiian lessees of Hawaiian homelands are asking for the review.
If the justices take the case, it could lead to a ruling that could jeopardize the state's notion that Native Hawaiians deserve the benefits based on Hawaii's unique history and their socioeconomic status.
The justices accept only a fraction of requests for reviews, but Native Hawaiian supporters still fear that a review could open the door for the court to deliver a setback to government programs for those with Hawaiian blood.
Attorneys for the state, city and neighbor island counties oppose the review.
They argue that the high court should refrain from using the case to review the "momentous question" of whether the state Constitution and laws that granted the exemptions are invalid under the U.S. 14th Amendment mandating equal protection under the law.
But lawyers for the five residents, none of whom is Native Hawaiian, say it is because of the importance of the issue that the justices should accept the case.
"A provision that has been in the Hawaii Constitution for Hawaii's entire statehood should not remain of doubtful constitutionality more than a half-century later," the residents' attorneys said. "It should be upheld or struck down. Now."
The residents' request was on the justices' agenda for their conference Friday. The justices customarily would announce today any decision they make during those private sessions. At least four of the nine justices must agree to the review.
The five residents — John Corboy, Stephen Aghjayan, Garry P. Smith, Earl Arakaki and J. William Sanborn — paid their property taxes under protest and sought refunds for amounts above the exemptions. The state Tax Appeal Court denied the refunds.
The five filed an appeal with the Hawaii Supreme Court, which threw out their case in April. Chief Justice Mark Recktenwald wrote the opinion saying the five did not have standing to press their case.
Their Honolulu lawyer, H. William Burgess, asked the U.S. Supreme Court to review the state high court's ruling. Burgess has handled other suits challenging Native Hawaiian programs dismissed by the courts, but this time he has the support of lead counsel Roy Englert Jr., a Washington, D.C., lawyer who has argued about 20 cases before the justices.
The request also has the backing of the Pacific Legal Foundation, the Cato Institute, the Grassroot Institute of Hawaii, the Goldwater Institute and other groups.
"Only this court can resolve the racial divide confronting Hawaii citizens because the state Supreme Court has proven itself completely unwilling to address any issue involving the Hawaii Constitution's favoritism toward native Hawaiians as a race," their lawyers said in a brief urging the justices to take the case.
Although the justices grant few requests for review, Burgess said he is "cautiously optimistic" based on issues raised in the case.
The Supreme Court receives about 10,000 requests for review each year but grants only about 100 that result in written decisions, according to the court.
Girard Lau, head of the state attorney general's Appeals Division, said he was also "cautiously optimistic" that the justices will turn down the review.
"We think the Hawaii Supreme Court got it right and made the right decision," he said.
Former state Attorney General Mark Bennett, who defended the state while the case was before the Hawaii Supreme Court, said he hopes and expects the high court to deny the review.
"But if the Supreme Court were to … take up the issue of whether types of benefits to Native Hawaiians violated the 14th Amendment, that would be a significant decision and a matter of real concern," he said.
Congress passed the Hawaiian Homes Act in 1921. It set aside 200,000 acres that once belonged to the Hawaiian kingdom for Native Hawaiians to lease lands at a nominal fee of $1 a year. The lawmakers noted that Hawaiians were a "dying race" with only 22,300 full-blooded Hawaiians in 1919, compared with 142,000 in 1826.
As part of the Admission Act that made Hawaii a state in 1959, the state was required to include the Hawaiian Homes Act in the Hawaii Constitution.
The act exempted lessees from all taxes for seven years. The city of Honolulu and neighbor island counties extended the exemption beyond that period, charging minimum taxes ranging from $25 to $150 a year.
For Honolulu the average residential tax assessment for 2009-2010 was $1,817, compared with the lessee assessment of $100, according to the plaintiff's lawyers.
The Hawaii Supreme Court ruled that the five did not have legal standing because they failed to show they were interested in the homestead lease program and failed to show they suffered any harm. The court did not address 14th Amendment constitutional issues.
In its court papers the residents' lawyers rely heavily on the U.S. Supreme Court's 2000 ruling Rice v. Cayetano, which struck down the requirement that only voters with Hawaiian blood could cast ballots to elect Office of Hawaiian Affairs trustees. In its 7-2 decision the court held that the restriction was based on race rather than a political classification.
The court, however, based its decision on constitutional voting rights and refrained from ruling on the equal protection provisions of the 14th Amendment.
In their papers to the justices, the plaintiffs' lawyers argue that the tax exemptions are based on the same impermissible racial grounds because only Native Hawaiians can hold homestead leases. They accuse the Hawaii Supreme Court of trying to "dodge" the constitutional issue.
"They wish to avoid upsetting a politically popular program, but they realize that Rice v. Cayetano forecloses any serious defense of that program on the merits," the lawyers said.
"If the racial classification at issue involved African-Americans and Caucasians, those arguments would likely have been laughed out of court," they said.
State, city and county lawyers argue that despite the "unfounded" attacks on the integrity of the Hawaii Supreme Court, the key issue is that the five failed to establish that they suffered as taxpayers.
Even if the exemptions for Hawaiian Homes lessees were declared invalid, it would be "wholly implausible" that city and county governments would allow the five and all property owners to pay the minimal rates for property taxes, a major source of revenue for the local governments, the lawyers said.
The government attorneys also point out that Hawaii justices outlined a "clear road map" for a future similar lawsuit if the challenger shows "an actual interest" in becoming a lessee.
The government lawyers urged the U.S. Supreme Court to forgo taking a case that would involve a review of Hawaii's complex history with the United States, including the seizure of Hawaiian lands and Congress' decision that the lands be held in trust for Native Hawaiians.
"It should not occur for the very first time in this court, without the benefit of any prior analysis by the state court intimately familiar with that history," they said.
MORE FROM THE STAR-ADVERTISER
Court dismisses challenge of Hawaiian Homes exemption
U.S. Supreme Court asks for brief on Hawaiian homelands case
Supreme Court seeks federal stance in case
Court rejects challenge to Hawaiian homes tax break
Recktenwald reflects on court's year
U.S. Supreme Court, order list for Monday December 12, 2011
Posted on Supreme Court website at about 5:30 AM Hawaii time
(ORDER LIST: 565 U.S.)
MONDAY, DECEMBER 12, 2011
ORDERS IN PENDING CASES
[Listed on page 1, BEFORE the short list of certiorari granted and very long list of certiorari denied]
CORBOY, JOHN M., ET AL. V. LOUIE, ATT'Y GEN. OF HI, ET AL.
The Solicitor General is invited to file a brief in this case expressing the views of the United States.
Honolulu Star-Advertiser, Tuesday December 13, 2011 hardcopy
Posted on newspaper website at 1:30 AM
Supreme Court seeks federal stance in case
A high court order leaves open the chance it might take up a review of a suit disputing benefits for Native Hawaiians
By Ken Kobayashi
The U.S. Supreme Court has left the door open to hear arguments in a case with potentially broad implications for government benefits awarded exclusively to Native Hawaiians.
State lawyers had urged the high court to deny a request to review a challenge of property tax exemptions granted to Native Hawaiian lessees of the Hawaiian Homes program, but justices instead announced Monday that they first want to hear the federal government's position in the case.
They issued an order inviting a brief from the U.S. solicitor general, who represents the Justice Department in cases before the Supreme Court. The justices will decide whether to hear the case after receiving the brief.
The case is significant because if the justices agree to review the challenge, it could eventually lead to a Supreme Court decision on the validity of government benefits for Native Hawaiians under the Constitution's 14th Amendment mandating equal protection under the law. The court has yet to rule on that issue.
Both sides in the case described themselves as "cautiously optimistic" after Monday's order.
The plaintiffs, five Hawaii residents who are not Native Hawaiian, contend that the property tax exemptions granted to the Hawaiian Homes lessees are racially discriminatory in violation of the 14th Amendment. They are asking the justices to overturn a Hawaii Supreme Court ruling this year that dismissed their lawsuit.
At least four of the nine U.S. Supreme Court justices must agree for the high court to hear the case. The high court grants only a fraction of requests for review.
State lawyers said they weren't disappointed by Monday's order.
"This is a normal process that is followed by the Supreme Court in a number of cases," said Joshua Wisch, spokesman for the state attorney general's office. "We remain cautiously optimistic that the court will deny certiorari. We believe the Hawaii Supreme Court got it right."
H. William Burgess, a Honolulu lawyer representing plaintiff John Corboy and the four other residents, said the announcement isn't "necessarily a bad thing from our point of view."
He said it's difficult to predict which way the court is leaning based on the announcement. "We basically remain cautiously optimistic," he said.
The court's order did not specify any deadline for the brief by Solicitor General Donald Verrilli Jr.
Burgess said it might be sometime in May, after which the high court would decide whether to review the challenge.
Mark Bennett, the former state attorney general who defended the constitutionality of the exemptions, said it's not unusual for the justices to ask for the opinion of the solicitor general when the case involves federal laws.
Congress passed the Hawaiian Homes Act in 1921, setting aside 200,000 acres for leases to Native Hawaiians at $1 a year. The Admissions Act passed by Congress that made Hawaii a state required that the 1921 legislation be part of the Hawaii Constitution.
The Hawaiian Homes Act exempts lessees from property taxes the first seven years. The city and neighbor island counties extended the exemptions by requiring minimal payments of $25 to $150 a year.
The average Oahu residential tax assessment for 2009-2010 was more than $1,800, the five's lawyers said.
The five are seeking a refund of their property taxes above what the lessees paid.
Bennett said he believes the solicitor general will agree with the state and urge the court to deny the review.
Burgess said in view of President Barack Obama's support for the Akaka Bill, he "wouldn't expect necessarily that the solicitor general would be supporting our position."
But, he added, the high court does not always agree with the solicitor general's opinion.
Alan Murakami, lawyer for the Native Hawaiian Legal Corp. which is not involved in the case, said he believes the justices are "thinking pretty hard " on the request for the review.
Murakami was reluctant to speculate about the effects of a ruling based on the 14th Amendment because it might be premature, and it would depend on the wording of the decision. But he said the ruling could "erode the entire basis for the homestead program."
The Office of Hawaiian Affairs, which was set up in 1978 to benefit people with Hawaiian blood, would also "definitely feel the weight of such a ruling," while Kamehameha Schools, a private institution, might not be affected as much, he said.
In the landmark Rice v. Cayetano ruling in 2000, the Supreme Court struck down the requirement that only voters with Hawaiian blood could cast ballots for OHA trustees.
The court, by a 7-2 vote, held the restriction was based on race rather than a political classification, but reached the decision on constitutional voting rights and not the 14th Amendment.
Native Hawaiian supporters fear that the challenge could open the door for a conservative-leaning Supreme Court to expand Rice's ruling and apply the 14th Amendment to government programs for Native Hawaiians.
Groups that filed a brief urging the court to take the case include the Pacific Legal Foundation, the Cato Institute, the Grassroot Institute of Hawaii and the Goldwater Institute.
In a 2007 case, rather than risk an unfavorable high court ruling, Kamehameha Schools settled a challenge under the federal civil rights law to its admissions policy favoring students with Hawaiian blood.
The schools said the settlement let stand a U.S. 9th Circuit Court of Appeals' ruling that upheld the policy.
A lawyer involved in the case said the schools settled by paying $7 million to an unnamed non-Native Hawaiian student and his mother.
Besides Corboy, the plaintiffs in the current case are Stephen Aghjayan, Garry P. Smith, Earl Arakaki and J. William Sanborn.
In deciding whether to review a challenge of the property tax exemptions for Native Hawaiian lessees of Hawaiian homelands, the U.S. Supreme Court invited the solicitor general to submit papers explaining the federal government's position in the case. The court did not set a deadline for the brief, but one of the lawyers in the case said it might be in May.
>> After the brief is submitted, justices will meet privately to decide whether to grant the review. At least four of the nine justices must agree.
>> If the review is denied, the case ends.
>> If the review is granted, the court will direct parties to submit briefs on whether the Hawaii Supreme Court was correct in dismissing a challenge by five non-Native Hawaiian residents who say the exemptions are racially discriminatory in violation of the U.S. Constitution's 14th Amendment equal protection provision.
>> The justices would later render a decision.
Honolulu Star-Advertiser, December 14, 2011
High court should decline case
Even as U.S. Sen. Daniel Akaka's bill to grant recognition of Hawaiian sovereignty sits stalled in Congress, Native Hawaiians' present recognition faces a serious legal challenge. The U.S. Supreme Court is giving serious consideration on whether to consider stripping legal tax exemptions from Hawaiian homelands lessees, a case that could have a devastating effect.
In April, the Hawaii Supreme Court rejected the argument by five non-Hawaiians who challenged Hawaiian property tax exemptions as race-based civil rights violations — but the case is being appealed to the U.S. Supreme Court. If the high court decides to hear it, then rules in favor of non-Hawaiian residents' attempt to dismantle property tax exemptions to Native Hawaiian lessees, the result could ripple throughout the native community by dashing conditions set by the Hawaiian Homes Act passed by Congress in 1921 and codified in the Hawaii Constitution.
The lawsuit relies largely on a 2000 federal high court ruling in Rice v. Cayetano that struck down the requirement that only Native Hawaiians can cast votes in Office of Hawaiian Affairs trustee elections.
The issue of native rights also lies at the heart of the Akaka Bill, which would grant rights similar to those of American Indian tribes. But Hawaiians' history differs significantly from those of Indian tribes, which were granted rights through treaties and have been recognized in courts as "domestic dependent nations." Unique remedy is due Native Hawaiians because of the complex history between the U.S. and Hawaii, including overthrow of the monarchy and seizure of Hawaiian lands.
THE U.S. Supreme Court sometimes asks the opinion of the U.S. Justice Department's solicitor general, who represents the administration before the high court, if a petition has a federal consequence. The solicitor general was asked by the high court this week to provide such advice.
While the request to the solicitor general may cause concern that the court is taking a step toward hearing the case, the result of past inquiries could be reassuring to Native Hawaiians. While the high court grants only one in 100 petitions that ask to hear issues in lower court rulings, a 1992 study found that it granted 88 percent of petitions where the solicitor general filed a brief supporting the petitioner and denied 60 percent of petitions where the solicitor general opposed the petitioner.
ANOTHER — perhaps the most — encouraging sign is that the Obama administration has supported the Akaka Bill and the cause of native self-determination. Sam Hirsch, deputy associate attorney general, told a Senate committee two years ago that indigenous Hawaiians have much in common with Indian tribes, pointing out that they exercised self-rule prior to the arrival of Western explorers and have worked to preserve traditional culture. Therefore, the solicitor general is likely to urge the Supreme Court to reject the petition, according to the past records.
However, the court's Republican majority could easily choose to align with the previous administration. That is because the George W. Bush administration threatened to veto the Akaka Bill four years ago, saying it would "formally divide sovereign United States power along suspect lines of race and ethnicity." The lawsuit at hand is supported by politically conservative or libertarian groups such as the Pacific Legal Foundation, the Cato Institute, the Grassroot Institute of Hawaii and the Goldwater Institute.
While Republicans dominate the Supreme Court, former Gov. Linda Lingle's administration supported Hawaiian sovereignty and her attorney general, Mark Bennett, told the Star-Advertiser's Ken Kobayashi that he hopes and expects the high court to deny review of the case. We echo that sentiment.
The failure over the past decade by Congress to approve the Akaka Bill has been disappointing, but hopes persist that the deserved legislation eventually is approved and signed into law. In the meantime, steps in the opposite direction would be more frustrating and could stand in the way of eventual success for deserved Hawaiian sovereignty.
Honolulu Star-Advertiser, December 16, 2011, Letter to editor
Advice to court wrong again
The Hawaii Supreme Court ruled 5-0 in favor of Hawaii's racial discrimination in property tax. Now this newspaper's editorial page urges the Supreme Court of the United States not to hear the appeal ("High court should decline case," Star-Advertiser, Our View, Dec. 14).
We've seen this pattern before. In 2009, this newspaper's predecessors urged the U.S. Supreme Court not to consider the ridiculous Hawaii Supreme Court 5-0 decision prohibiting the state from selling any state-owned land without permission from ethnic Hawaiians. The high court ignored that advice and overturned the state court, 9-0.
Ten years previously, this newspaper's predecessors urged the Supreme Court not to consider Hawaii's racially segregated voting system. But the court did hear the case and ruled 7-2 in Rice v. Cayetano that everyone has a right to vote regardless of race, even in Hawaii.
Thank God the U.S. Supreme Court heard those cases despite Hawaii newspapers urging it to see no evil, hear no evil, speak no evil.
Kenneth R. Conklin
A reply brief for petitioners, filed on November 22, 2011, was short and eloquent in explaining why the issue raised in Corboy is important, why petitioners have standing, and why the state's delaying tactics should be ignored.
As respondents concede, this case involves "the
momentous question of whether provisions of Hawaii's
constitution—and the very terms on which it became
a State—are invalid under the Fourteenth
Amendment." Br. in Opp. 2. That is precisely why
this Court should grant review. A provision that has
been in the Hawaii constitution for Hawaii's entire
statehood should not remain of doubtful constitutionality
more than a half-century later. It should
be upheld or struck down. Now.
It is also clear—for the reasons stated in the
petition and the amicus briefs—that the Hawaii
courts gave the wrong answer on the constitutional
merits. Respondents try to insulate that blatantly incorrect
result from review by arguing that petitioners
lack standing. Petitioners rest on the discussion
in the petition and amicus briefs for the proposition
that standing in this case is not a pure question of
state law. See also Davis v. Wechsler, 263 U.S. 22, 24
(1923) (Holmes, J.) ("Whatever springes the state
may set for those who are endeavoring to assert
rights that the state confers, the assertion of Federal
rights, when plainly and reasonably made, is not to
be defeated under the name of local practice."). As for
respondents' effort to defend the denial of standing
as a matter of federal law, it fails.
Petitioners seek forward-looking relief as well as
a refund of past taxes. They base their claims on the
Equal Protection Clause. It is clear that they have
standing under federal law, even if refunds are
"speculati[ve]" (Br. in Opp. 2), even if "the refund
amount" is uncertain (Br. in Opp. 5), and even if
some of their remedial theories involve "conjecture"
(Br. in Opp. 6). A discriminated-against person "need
not demonstrate that [he or she] has been, or will be,
[the winner in a racially nondiscriminatory system,
such as] the low bidder on a Government contract.
The injury in cases of this kind is that a ‘discriminatory
classification prevent[s] the plaintiff from competing
on an equal footing.' Northeastern Fla. Chapter,
Associated Gen. Contractors of America v. Jacksonville,
508 U. S. 656, 667 (1993). The aggrieved
party ‘need not allege that he would have obtained
the benefit but for the barrier in order to establish
standing.' Id., at 666." Adarand Constructors, Inc., v.
Peña, 515 U.S. 200, 211 (1995).
No application for a homestead lease is required.
When a benefit cannot be obtained on racially discriminatory
grounds, no futile exercise is necessary.
"A consistently enforced discriminatory policy can
surely deter job applications from those who are
aware of it and are unwilling to subject themselves
to the humiliation of explicit and certain prejudice. If
an employer should announce his policy of discrimination
by a sign reading ‘Whites Only' on the hiringoffice
door, his victims would not be limited to the
few who ignored the sign and subjected themselves
to personal rebuffs." Teamsters v. United States, 431
U.S. 324, 366 (1977).
It is abundantly clear that petitioners have standing.
The only possible explanation for the obfuscation
by the Supreme Court of Hawaii is its desire to insulate
the blatant unconstitutionality of the racial discrimination
in the HHCA from review by this Court
for as long as Hawaii can get away with it. Cf.
Hawaii v. Office of Hawaiian Affairs, 129 S. Ct.
1436, 1442 (2009) (declining to "tarry long" over a
similar maneuver by the same court). This Court
should not reward that tactic.
Imagine that this case arose in Mississippi, not
Hawaii, and that the benefits—and burdens—of
leasehold ownership were reserved by the state
constitution for white people. Imagine that black
people sued to challenge a tax break given to leaseholders.
Imagine that the State defended on the
grounds that the black plaintiffs hadn't expressed a
desire to be leaseholders and that they lacked
standing. Those arguments, as we said in the petition,
would be laughed out of court. This case is no
For the foregoing reasons and those stated in the
petition and amicus briefs, the petition for a writ of
certiorari should be granted.
On May 25, 2012, the U.S. Solicitor general finally filed the amicus brief which the Supreme Court had asked him to do five months previously. The 27-page brief opposes granting certiorari for numerous technical reasons regarding standing. It can be downloaded in pdf format here:
The Solicitor General's amicus brief closes with the following astonishing reason for denying certiorari"
"Moreover, recent and ongoing legal developments further counsel against reviewing the merits at this time, especially without the benefit of a developed record. While this litigation was pending, the State of Hawaii enacted legislation that provides a process for the indigenous native people of hawaii to reorganize as a sovereign government, to be followed by formal recognition of the governing entity by the State if a reorganization is adopted. Act 195, 2011 Haw. Sess. Laws 646. The legislation further provides that the HHCA "shall be amended, subject to approval by the United States Congress, if necessary." id. § 3; see p. 3, supra. Petitioners' argument on the merits rests in part (Pet. 17) on the proposition that no native hawaiian entity has been recognized as a quasi-sovereign entity. In light of the ongoing legal developments in that area, even if petitioners' claims were justiciable, it would be premature for this Court to rule on those claims before the process concerning reorganization occurs; before any ensuing action by Congress or the executive branch has been considered; and before any lower court has an opportunity to address the legal significance of any such steps."
What makes this reason astonishing is that the Solicitor General is asking the Court to rule based on the assumption that Act 195 will be fully implemented and will survive court challenges. But the world keeps spinning on its axis, and life goes on in the meantime. The mere fact that legislation has been introduced should not compel a court to rule as though the legislation has passed and been implemented. If that were done, then any member of a legislature could stop a court from ruling merely by introducing a bill.
Inverse condemnation blog, May 29, 2012
Obama Administration's Amicus Brief: Deny Cert To Case Challenging Property Tax Exemptions For Hawaiian Homestead Lessees
The federal government has filed its invitation brief
in Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011), the cert petition
asking the U.S. Supreme Court to review the Hawaii Supreme Court's dismissal
of a challenge to the property tax exemptons conferred on lessees of Hawaiian Homesteads.
Only "native Hawaiians" are eligible to lease homestead land, and thus only those possessing the appropriate blood quantum are entitled to the tax exemptions. The petitioners are not "native Hawaiians" and thus are not lessees, and paid their property taxes under protest. When they sought refunds in the Hawaii Tax Appeals Court and argued that they should also be exempt, that court concluded that "native Hawaiian" was not a racial classification and did not review the tax exemption with strict scrutiny. Instead, the court upheld the exemption under rational basis review. The Hawaii Supreme Court vacated the Tax Court decision and dismissed for lack of jurisdiction, holding the petitioners lacked standing to challenge the exemption since they had not sought homestead leases (leases for which they were ineligible because they are not native Hawaiians). Even though they are not eligible as a matter of law, the court held that in order to bring a lawsuit challenging their ineligibility, they needed to have applied for a lease (and been denied).
The cert petition
argues that the refund claimants have standing, and that the Equal Protection Clause prohibits state and local tax exemptions that are "available only to members of a certain race." The State of Hawaii's Brief in Opposition
argues that the these are questions of state law, and that the Court should not grant cert.
The case was scheduled for the Court's conference on December 12, 2011, but the Court postponed consideration of the case and invited the Obama Administration to weigh in with a brief, because the petition
draws into question the constitutionality of the Hawaiian Homes Commission Act and the constitutionality of a part of the Hawaii Admission Act. When federal laws are so questioned, the federal government is required to be notified, and it may file a brief in the case. The petitioners did, but the Solicitor General's office did not weigh.
As a result of the Supreme Court's invitation (such "invitations" are never declined!), it now has, and the feds have strongly supported the State in arguing that the standing questions are matters purely of Hawaii law, and the Hawaii Supreme Court's dismissal is grounded in "independent and adquate" state law, meaning that it is immune from Supreme Court review under Michigan v. Long, 463 U.S. 1032 (1983).
The SG's brief also argues alternatively that if federal standing law is applied, the petitioners are alleging only "taxpayer standing" and not an individualized injury. Finally, the brief argues that whether the rule of Rice v. Cayetano, 528 US. 495 (2000)
is applicable should be left for a future case. Perhaps the most interesting parts of the SG's brief are its recitation of Hawaii history (pages 1 - 3), and its noting of "recent and ongoing legal developments" (the State's recent legislation instituting a "process for the indigenous native people of Hawaii to reorganize as a sovereign government").
Here is the Court's docket entry.
We will bring you more if additional briefs are filed, and when the case is put back on the Court's conference calendar.
Brief for the United States as Amicus Curiae, Corboy v. Louie, No. 11-336 (filed May 25, 2012)
On June 5, 2012 the attorneys for the Corboy plaintiffs filed a brief in the U.S. Supreme Court replying to the Solicitor General's brief. This reply brief can be downloaded at
According to SCOTUS blog, it appears that the Corboy case has been scheduled for the Justices' conference of June 21 when they are expected to decide whether to grant certiorari and might conceivably grant a summary disposition.
Petitions for Conference of 06.21.2012
11-336 Corboy v. Louie (1) Whether petitioners have standing to seek a refund of their own taxes; and (2) whether the Equal Protection Clause precludes a state or municipality from creating tax exemptions that are available only to members of a certain race.
The results of the June 21 conference could be expected to be included in the regular Monday orders list on June 28. The Court normally adjourns for the summer close to the end of June or very early in July, and does not hold any more formal sessions until the first Monday in October.
The conference of June 21 produced some decisions reflected in the orders list for Monday June 25. However, some of the cases scheduled for the June 21 conference, including Corboy, were deferred and relisted for the next conference of June 28. According to SCOTUS blog it is not unusual for cases to be deferred and relisted; and some cases are deferred and relisted multiple times. If there is no decision regarding Corboy at the June 28 conference, the case will probably be relisted for the next conference which would be held on September 24, 2012.
John Elwood Contributor
Posted Wed, June 27th, 2012 10:39 am
Relist (and hold) watch
John Elwood reviews Monday's relisted and held cases.
** Excerpts by Ken Conklin
Four of Monday's ten cert. grants came from the rolls of relisted cases.
[** Of tangential interest]
The petitioner in Comcast Corp. v. Behrend, 11-864, likewise asked for summary reversal, but after six relists, got . . . an outright grant (which, in fairness, it also had requested). That beats the heck out of having your case repeatedly relisted before an outright denial (see, e.g., the Gitmo cases from earlier this month), but as I've noted well past the point where boredom sets in, a large number of relists more often signals an impending dissent from denial or summary reversal than a grant. I suspect there was an opinion of some sort in circulation before the necessary votes were forthcoming. In the course of a half-dozen relists, the Court did reformulate the question slightly.
The Court also relisted for the first time since receiving the SG's invited brief in Corboy v. Louie, 11-336, which involves claims by real property owners in Hawaii for an exemption from real property taxes equal to the exemption granted (only) to native Hawaiian homestead lessees under the Hawaiian Homes Commission Act. The petition presents the questions whether petitioners have standing to seek a refund of their own taxes (the SG says no), and whether the Equal Protection Clause precludes a state or municipality from creating tax exemptions that are available only to members of a certain race. So nothing controversial there. The Solicitor General recommends the Court deny cert., but the same was true of three of Monday's grants.
U.S. Supreme Court orders list issued on Friday June 29, 2012 for results from conference of Thursday June 28.
CORBOY, JOHN M., ET AL. V. LOUIE, ATT'Y GEN. OF HI, ET AL.
The motion of Center for Equal Opportunity for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is denied.
Honolulu Star-Advertiser, Friday June 29, 2012
Breaking news posted at 11:21 AM Hawaii standard time
Supreme Court won't review ruling on native Hawaiian tax break
By Star-Advertiser staff
The U.S. Supreme Court denied a request today to review a Hawaii Supreme Court decision last year that rejected a lawsuit by non-Native Hawaiians seeking tax exemptions given to Native Hawaiian lessees under the Hawaiian Homes Commission Act.
John M. Corboy and several others filed a taxpayer lawsuit contending that the exemptions constituted racial discrimination in violation of the U.S. Constitution and federal civil rights laws.
But the Hawaii high court ruled that the taxpayers did not have legal standing to press their lawsuit.
The U.S. Supreme Court, without explaining its decision, denied the taxpayers' request to review the Hawaii court's decision.
Honolulu Star-Advertiser, June 30, 2012
Justices won't rule on tax breaks given to Hawaiian Homes lessees
By Ken Kobayashi
The U.S. Supreme Court has declined to consider the issue of whether tax exemptions given to Native Hawaiian lessees under the Hawaiian Homes Commission Act constitute racial discrimination.
The Hawaii Supreme Court last year rejected a taxpayer lawsuit by non-Native Hawaiians who contended the exemptions violate federal civil rights laws and the U.S. Constitution. On Friday the [U.S. Supreme] court turned down a request to review that ruling.
John Corboy and four other plaintiffs filed the lawsuit challenging the exemptions, but the Hawaii high court ruled that they did not have legal standing to press their lawsuit.
They asked for the review, but the U.S. Supreme Court, without explanation, denied the request.
The state and counties defended the constitutionality of the exemptions and urged the high court justices not to accept the case.
"We are pleased that the United States Supreme Court today declined to hear the case," Attorney General David Louie said.
"Despite the plaintiffs' assertions, the tax exemptions do not differentiate between taxpayers on the basis of race, but rather on whether a taxpayer is a Hawaiian Homelands homesteader."
The high court justices had earlier invited the U.S. solicitor general to explain the federal government's position.
In response, Solicitor General Donald Verrilli Jr. defended the Hawaii court's ruling and urged the justices to deny the review.
At least four of the nine justices must agree to a review before the court accepts a case.
MORE FROM THE STAR-ADVERTISER
[Previous articles about this lawsuit in this newspaper, most recent at the top]
Supreme Court won't review ruling on native Hawaiian tax break
Court rejects challenge to Hawaiian homes tax break
Court dismisses challenge of Hawaiian Homes exemption
U.S. Supreme Court asks for brief on Hawaiian homelands case
Supreme Court seeks federal stance in case
Court might hear case testing state benefits for Hawaiians
High court should decline case
Supreme court says No to Hawaiian tax break
TV VIDEO 2 minutes and 4 seconds posted on KITV4 website
6:49 PM HST Friday June 29, 2012
Transcript of the video
KITV, Friday June 29, 2012, 6:37 PM
U.S. Supreme Court decides not to hear Hawaii case
High court will not take up challenge to tax exemptions for native Hawaiians
A decision by the nation's highest court removes a cloud over the Department of Hawaiian Home lands policies, on the day DHHL broke ground for a new subdivision.
Gov. Neil Abercrombie made a point of underscoring that at a groundbreaking for Kakaina, a 44-unit neighborhood in Waimanalo.
"What is good for native Hawaiians and Hawaiian Home Lands is good for all of Hawaii. Our tax policies with Hawaiian Home Lands are sound, somber and serious," Abercrombie said.
The U.S. Supreme court apparently didn't say why it chose not to hear the case, but those who challenged the tax exemption are disappointed the case got this far in the appeals process, only to be turned away the by the high court.
"It's a disappointment, but it's not the end, the battle will prevail, and the equal protection clause should apply to Hawaii as it does to other states," said Honoluul attorney Bill Burgess who sued the state over the tax exemptions provided to homesteaders.
Burgess lost on the Hawaii Supreme Court level because his clients didn't apply for Hawaiian Home Lands, and so didn't have standing.
The Honolulu attorney maintains his challenge is not a matter of being anti-Hawaiian but as a way to clarify the state's policies relating to Hawaiians as it applies to the Constitution.
Burgess won a round in the case of "Rice versus Cayetano" which opened up the election of Office of Hawaiian Affairs to all voters.
"The government acts like it never happened, and they still continue to give special protection based on a particular race," said Burgess.
"People elect us to do the right thing constitutionally, to do the right thing in terms of policy that advances Hawaii's people," Abercrombie said.
Burgess plans to file a lawsuit over the state's planned transfer of Kakaako land to OHA as part of settlement over ceded lands.
The state is to transfer title to the land next week.
Lingle Senate Campaign 2012 news release
June 30, 2012
GOV. LINGLE RESPONDS TO SCOTUS RULING ON HAWAIIAN HOMELANDS PROPERTY ISSUES
STATEMENT BY GOVERNOR LINGLE REGARDING THE SUPREME COURT'S DECISION TO REJECT A FEDERAL CONSTITUTIONAL CHALLENGE TO COUNTY PROPERTY TAX EXEMPTIONS AND CONSTITUTIONALITY OF HAWAIIAN HOMES COMMISSIONS ACT
HONOLULU -Former Governor Linda Lingle applauded the United States Supreme Court's decision Friday to reject a federal constitutional challenge to county property tax exemptions provided to lessees of Hawaiian Homelands and to the constitutionality of the Hawaiian Homes Commission Act itself. The Maui tax exemption was one of those challenged and was adopted while Governor Lingle was Maui's Mayor. The lawsuit was vigorously and successfully defended by Governor Lingle's administration, resulting in the rejection of the lawsuit in State Tax court and the Hawaii Supreme Court.
Governor Lingle stated:
"I congratulate the state Attorney General's office on bringing to a successful conclusion this meritless lawsuit attacking benefits provided to native Hawaiians. I continue to believe in the constitutionality of the programs providing these benefits, which my Administration successfully defended for eight years. Even with this success, I fear these lawsuits will continue. If elected to the United States Senate, I will work alongside Senator Inouye to try to pass the Akaka Bill, which would provide recognition to a Native Hawaiian Governing Entity, and, hopefully, end these lawsuits forever."
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