(c) Copyright 2001 - 2003, Kenneth R. Conklin, Ph.D. All rights reserved
On June 1, 2000 Ken Conklin went to the State of Hawai'i Office of Elections to take out nominating papers to run for public office as a Trustee of the Office of Hawaiian Affairs. State officials refused to give him nominating papers, for no reason other than the fact that he has no Native Hawaiian blood. On July 25, a complaint was filed by a multiracial group of plaintiffs (including two ethnic Hawaiians) in U.S. District Court in Honolulu, seeking a Temporary Restraining Order to probibit the State of Hawai'i, the Governor, and officials of the State Elections Office from enforcing the racial restriction on candidacy for OHA. This case has come to be known as the Arakaki case, because the lead plaintiff (alphabetical order) is Mr. Earl Arakaki. In the Honolulu District Court the case had docket Civil No. 00-00514-HG.
The attorney who drafted the original complaint, brief, motions, and other documents, and represented the plaintiffs through the granting of a temporary restraining order, is retired attorney H. William Burgess, who is a friend of Ken Conklin and the other plaintiffs. One of the plainfiffs is Mr. Burgess' wife, Sandra Puanani Burgess. A feature article was subsequently published in Midweek Newspaper on January 2, 2002 including biographical information about the Burgesses and describing their longstanding civil rights campaign for equality under the law in Hawai'i. See
On August 15 Judge Helen Gillmor issued the temporary restraining order. On August 16 Ken Conklin successfully took out nominating papers, and subsequently over a dozen other non-Hawaiians also filed nominating papers and had their names placed on the ballot. On September 19, Judge Gillmor made the injunction permanent. Her decision in the Arakaki case was based on three laws: the 15th Amendment to the U.S. Constitution, the 14th Amendment, and the Voting Rights Act.
In the election November 7, 2000, all the people of Hawai'i for the first time in history exercised their right to vote for OHA candidates without racial restrictions on who could vote or who could run. One non-Hawaiian of Japanese ancestry, Charles Ota of Maui, received over 100,000 votes and was elected to one of nine seats on the OHA board. Several non-Hawaiian candidates placed above the 50th percentile in their contests, and Ken Conklin placed 4th out of 20 candidates for one seat, receiving 18,115 votes. Some information about Ken Conklin's campaign, and the legal decisions and press coverage related to those decisions, can be found at
Judge Gillmor's decision in the Arakaki case unfortunately is not available in electronic form. However,
excerpts of some of the most important parts of Judge Gillmor's ruling are provided.
The 14th Amendment arguments are potentially the most far-reaching, because they extend the applicability of the landmark Rice decision to a much broader range of issues than just the right to vote or to run for office.
The State of Hawai'i appealed Judge Gillmor's decision to the 9th Circuit Court of Appeals (the last stop before the U.S. Supreme Court). In the 9th Circuit the case has docket Civil No. 00-17213. Unfortunately, the State's 13,999-word appeal "brief" is not available in electronic form. However,
the response brief from the victorious Arakaki plaintiffs is provided in its entirety.
an amicus brief was provided by the Pacific Legal Foundation
which further strengthens the 14th Amendment basis for Judge Gillmor's decision. The PLF amicus brief also makes clear that the Supreme Court's decision in the Rice case, rejecting any applicability of Mancari to OHA, applies to the issue of candidacy as well as it applies to the issue of voting. In appealing the Arakaki decision, the State of Hawai'i virtually begged the 9th Circuit Court of Appeals to avoid using the 14th Amendment as a basis for ruling against the State. The State warned the Court that an adverse ruling based on the application of strict scrutiny under the Fourteenth Amendment would "risk striking the deathknell" of OHA and other state and federal programs for Hawaiians, and listed numerous threatened programs. The Pacific Legal Foundation "urges nothing more than that this Court apply existing law to the present question. If it turns out that Hawaii is administering other unconstitutional programs, that fact provides GREATER reason, not less, for this Court to do its duty under the Constitution."
On May 6, 2002 a three-judge panel from the 9th U.S. Circuit Court of Appeals came to Honolulu and heard oral arguments for this case lasting about 50 minutes. The judges were J. Clifford Wallace, A. Wallace Tashima and Richard Tallman. The Honolulu Star-Bulletin covered the event, and an article by reporter Pat Omandam can be found at
On December 31, 2002 the Ninth Circuit Court of Appeals issued its ruling.
Here is a press release from plaintiffs' attorney H. William Burgess issued on December 31, 2002; followed by a link to the 15-page pdf decision taken from the 9th Circuit website.
Ninth Circuit Affirms District Court in Arakaki v. State, Rules State Cannot Discriminate Against Candidates for Public Office Based on Race
The Ninth Circuit Court today affirmed Hawaii District Court Judge Helen Gillmor's decision that struck down the racial restriction on eligibility to be a candidate for OHA trustee. The Circuit held that "Hawaii's limitation of eligibility to be a candidate for OHA trustee to ‘Hawaiians' is invalid under the Fifteenth Amendment and § 2 of the Voting Rights Act". . Judge Gillmor had also ruled that the state laws violate the Equal Protection Clause of the Fourteenth Amendment but the Ninth Circuit said that it did not need to reach that issue to rule in favor of the plaintiffs and against the State.
The multi-racial group of plaintiffs included Kenneth R. Conklin, who ran for OHA trustee. Before the 2000 election, Federal District Court Judge Helen Gillmor struck down the racial restriction on running for office and opened the election to everyone. One non-Hawaiian, Charles Ota, was elected.
The Ninth Circuit Court rejected the State's argument that the restrictions were not "racial" in nature, saying, "But the holdings of Rice that: (1) OHA is an "arm of the State"; (2) trustee elections are "elections of the State" in which all citizens should have an equal voting interest; and (3) the Hawaiian ancestry requirement is "race-based," apply equally in this case."
The court also rejected the State's argument that the Mancari case, involving members of Indian tribes, "saves" the OHA trustee limitation, noting that the Supreme Court in Rice had invalidated the OHA voting scheme "regardless of whether Mancari applied."
"We hope that citizens who for years have taken OHA and the Department of Hawaiian Home Lands for granted will now realize that those are race-based programs which can have no future in an American democracy," said H. William Burgess, one of the attorneys for the multi-racial group of plaintiffs who challenged the state laws.
Plaintiff Earl Arakaki and some of the other plaintiffs have joined with other Hawai`i citizens to bring a new suit challenging the validity of OHA and the Department of Hawaiian Home Lands. That case is pending in the District Court. "The State government should not spend money practicing and defending discrimination. It should not divide us by race." Burgess said. "The best hope for all of us, whatever our ancestry, is equality under the law and Aloha for all."
"Working together, we can develop programs open to everyone that preserve Hawaiian culture and help everyone who needs help," said Patrick Hanifin, another of the plaintiffs' lawyers.
December 31, 2002
H. William Burgess, (808) 947-3234
Patrick Hanifin, (808) 585-0335
The full text of the 15-page 3-0 decision by the 9th Circuit Court of Appeals, taken from the 9th Circuit website, can be found at:
On January 1, 2003 the Honolulu Star-Bulletin published a report about the 9th Circuit decision. Here is that report:
Non-Hawaiians' right to run for OHA upheld
The federal appeals court ruling does not address discrimination
By Pat Omandam
A federal appellate court has upheld a ruling that allows non-Hawaiians to run for the Office of Hawaiian Affairs.
Even so, attorney Sherry Broder, who represents OHA but is no longer its board attorney, said the opinion is a good thing for the agency. "I see this as helpful to the Office of Hawaiian Affairs and the other litigation that's going on," she said, referring to lawsuits charging the agency with racial discrimination.
The 9th U.S. District Court of Appeals, in a 16-page decision yesterday, affirmed U.S. District Judge Helen Gillmor's September 2000 ruling that OHA elections violated the 15th Amendment of the U.S. Constitution and the Voting Rights Act. Former state Attorney General Earl Anzai appealed the decision.
But the appeals court said the plaintiffs did not have standing when Gillmor also ruled the Hawaiian-candidates-only restriction violated the equal protection or racial discrimination clause of the 14th Amendment. As a result, the appeals court removed that portion of her ruling.
That is important to OHA and state attorneys, who are defending OHA and the Department of Hawaiian Home Lands from ongoing lawsuits that claim their programs discriminate by race. Since the appeals court fell silent on these issues, its decision yesterday did not place an additional burden on defending those cases, said Charlene Aina, a state deputy attorney general.
"What's important is ... this clarification that the 9th Circuit gives us. In so many words, the 14th Amendment challenge is yet to be decided with respect to the native Hawaiian programs in OHA and the Hawaiian Homes Commission Act," Aina said.
Broder said the 9th Circuit is scheduled to hear oral arguments Jan. 14 on appeals of U.S. District Judge David Ezra's rulings that Patrick Barrett and Republican political candidate John Carroll lacked standing in their separate equal-protection challenges to Hawaiian programs.
Pending before U.S. District Judge Susan Mollway is a 14th Amendment challenge to Hawaiian programs brought by 16 multiethnic plaintiffs whom Mollway has ruled have standing as state taxpayers. The plaintiffs in that case are mostly the same as those in the OHA trustee candidacy case.
Gillmor's ruling opened the way for non-Hawaiians like Charles Ota, of Maui, to run for and win a special two-year seat as trustee of the OHA board in the 2000 elections. Ota's term expired last fall and he did not seek re-election. Ota said after having served as trustee for two years, he believes a person of Hawaiian ancestry is better suited for the job. No other non-Hawaiian since has won a seat as trustee.
"The state government should not spend money practicing and defending discrimination," said retired attorney H. William Burgess, co-counsel who represented the 13 plaintiffs in the case, including Kenneth Conklin, the first non-Hawaiian to file papers to run for OHA. "It should not divide us by race."
Burgess said yesterday the 9th Circuit rejected state arguments the OHA candidacy restrictions were not "racial" in nature. He added the court noted the U.S. Supreme Court's Rice vs. Cayetano decision as having invalidated the entire OHA voting scheme.
On Sunday January 5, 2003 the Honolulu Star-Bulletin published a strange editorial which seems to say that the Arakaki#1 lawsuit was unfortunate because of its expense and inconvenience to taxpayers. The editorial says future race-discrimination lawsuits should be avoided by (1) having Congress pass the Native Hawaiian Recognition bill (thereby making racial discrimination legal and sparing the state the expense and trauma of future litigation), and (2) having the State Legislature (grudgingly) clarify state law to eliminate racial restrictions from being considered for appointment to state office (because otherwise another Arakaki-like lawsuit might be filed).
Akaka bill would end voting-rights lawsuits
A federal appeals court has upheld a ruling that candidacies for Office of Hawaiian Affairs trustee must be open to all races.
RACIAL discrimination has been eliminated from the democratic process of electing trustees of the Office of Hawaiian Affairs, but a federal appeals court left a small bit of housekeeping for the state Legislature. The court affirmed the right of non-Hawaiians to run for trustee, but lawmakers should extend that principle to those appointed by the governor to vacancies on the OHA board.
The voting-rights and right-to-run lawsuits have been valid because OHA is a state agency, unlike Native American tribes that have been recognized as "domestic dependent nations" since 1831. The best way to avoid further litigation is enactment of the bill sponsored by Senator Akaka that would lead to a sovereign Hawaiian entity with a relationship to the federal government comparable to that of Indian tribes.
Federal District Judge Helen Gillmor ruled in September 2000 that the state's restriction on OHA candidacies or appointments to Hawaiians was unconstitutional. Her ruling followed by seven months the landmark U.S. Supreme Court decision in Rice vs. Cayetano that struck down the state constitutional provision allowing only Hawaiians to vote in OHA elections. The state could have saved the cost of further litigation by opening OHA trusteeships to all races promptly after the Rice ruling.
Predictably, the 9th U.S. Circuit Court of Appeals ruled this week that Gillmor was right in assuring non-Hawaiians that they could run for OHA seats. It declined to rule on whether the state was unconstitutionally discriminatory in appointments to trusteeships essentially because no evidence that it had discriminated was presented. Plaintiff Kenneth R. Conklin could legitimately claim he had been denied the right to run for trustee, but the plaintiffs could provide no evidence that they had been passed over in appointments.
The state Constitution says that only Hawaiians may be "eligible for election or appointment to the board." The Legislature should clear up the confusion by removing all racial restrictions in elections or appointments. Otherwise, a non-Hawaiian person seeking a gubernatorial appointment to fill a vacancy could claim discrimination if a Hawaiian were appointed, regardless of their qualifications.
These court decisions are consistent with Justice Anthony Kennedy's statement in the Rice ruling that "race cannot qualify some and disqualify others from full participation in our democracy."
The appeals court is scheduled later this month to hear arguments in a pair of lawsuits that challenge OHA expenditures that benefit only people of Hawaiian ancestry. Numerous government programs at all levels of government have been designed to benefit certain minorities, and OHA seems to be such a program.
"This is not a voting-rights case," District Judge David Ezra ruled last year in rejecting the claim as a political grievance. "This is the other shoe, and it is a very different brand and nature."
Copyright (c) 2001 - 2003, Kenneth R. Conklin, Ph.D. All rights reserved
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