Motion to Intervene in OHA v State of Hawai'i

NO. 20281

IN THE SUPREME COURT OF THE STATE OF HAWAII

Filed March 28, 2000

MOTION TO INTERVENE

MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE

DECLARATION OF H. WILLIAM BURGESS IN SUPPORT ,
EXHIBITS A - J

(PROPOSED) INTERVENING PARTIES' OPENING BRIEF,
ADDENDA 1 - 12

and

CERTIFICATE OF SERVICE

H. WILLIAM BURGESS #833

2299-C Round Top Drive

Honolulu, Hawaii 96822

Telephone (808) 947-3234

Facsimile (808) 947-5822

Attorney for Movants

MOTION TO INTERVENE

Introduction. The Supreme Court of the United States held in Rice v. Cayetano, 120 S.Ct. 1044 (February 23, 2000) that the definitions of "Hawaiian" and "native Hawaiian" are racial classifications. Those definitions are the foundation and only reason for existence of the Office of Hawaiian Affairs ("OHA"). The Rice decision, together with the Supreme Court's other decisions holding all racial classifications by any government presumptively invalid, if applied in this case, will require that OHA be invalidated and its claims dismissed.

One of these movants requested on March 6, 2000 that Defendant-Appellant State of Hawaii (the "State") forthwith raise and vigorously pursue as a defense in this action that OHA and the laws supporting its claims violate the Constitution of the United States. A response by March 9, 2000, as to whether the State would do so, was requested. So far, none has been received.

It has now become clear that the State will not adequately represent the interests of movants who seek, in this case, the equal protection of the laws guaranteed by the U.S. Constitution. Indeed the State Attorney General's office has a conflict of interest and is disqualified from representing the interests of movants or even the State in this case because the A.G. represents the interests of the adverse party, OHA, in Rice v. Cayetano. It is equally clear that, if limited to the status of amici curiae (as this Court previously ordered for some of these movants), movants will be unable to adequately represent their own interests.

Motion to Intervene. Jack H. Scaff and the other citizens of Hawaii signing this motion move the court for an order permitting them to intervene as parties in this action and to file a brief, in substantially the form filed herewith, asserting as a defense on behalf of the State that the laws relied upon by Plaintiffs-Appellees (i.e., the parts of Hawaii's Constitution and statutes which create, fund or implement the Office of Hawaiian Affairs or otherwise single out "native Hawaiians" for special entitlements) are invalid under the Constitution of the United States.

This motion is made on the grounds that:

1. Movants (in addition to their interest in having the State of Hawaii extend its Aloha to all its citizens without favoritism because of race or ancestry) have a material financial interest in the outcome of this action as taxpaying citizens of the State of Hawaii and the United States and as beneficiaries of the public land trust (established in 1898 "solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes");

2. The disposition of this action may as a practical matter impair or impede movants' abilty to protect that interest;

3. Movants' interests are not being adequately represented by the existing parties.

The State Attorney General's office has a conflict of interest and is disqualified from representing the interests of movants or even the State in this case because it represents the interests of the adverse party, OHA, in Rice v. Cayetano.

Defendant-appellant, State of Hawaii (the "State") as trustee of the public land trust has a fiduciary duty to defend actions which may result in loss to the trust estate and a duty of impartiality and loyalty to all the trust beneficiaries. Despite movants' demand, the State has not carried out that fiduciary duty to over 95% of the trust beneficiaries (including movants) by raising the federal constitutional issue;

4. The merits of the claims presented in this case cannot be finally adjudicated until this court has first determined whether Plaintiff-Appellee Office of Hawaiian Affairs has been validly created and whether its claims are valid under the Constitution of the United States; and

5. Although this motion was not brought in the trial court, this court should nevertheless grant the motion at this time because:

a. The intervention will not unduly delay or prejudice the adjudication of the rights of the original parties. Any delay that might arise from the court's now considering, hearing all sides of, and then promptly adjudicating the federal constitutional issue would be insignificant in light of this action's long history and its overriding future significance to the economic and social well being of the entire State population, Hawaiian and non-Hawaiian alike;

b. The State and its officials had and have a fiduciary duty to all the beneficiaries of the public land trust (including movants and the over 1 million other beneficiaries who are not "descendants of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778") to raise the federal constitutional question in a timely manner and breached that duty by not doing so;

c. The facts relating to the constitutional issue are undisputed and the court's decision on that issue could be dispositive of the action;

d. Because that same issue will, if not adjudicated in this case, be raised separately in related or unrelated cases, adjudication here will provide the fairest and most efficient means of resolving the issue; and

e. As shown by the attached Declaration of H. William Burgess, the executive and legislative branches have declined to recognize that a federal constitutional question even exists much less do anything about it. It is therefore imperative that this court do so.

This motion is based on the attached Memorandum in Support of Motion to Intervene and on the (Proposed) Intervening Parties' Opening Brief (Exhibit A attached hereto), the Declaration of H. William Burgess and the records and files of this case.

Dated Honolulu, Hawaii, March 28, 2000

H. William Burgess

Attorney for Movants

Approved by Movants:

Jack H. Scaff Donna Malia Scaff

Michael Garcia Patricia Carroll Marie Boles

Earl Arakaki Evelyn C. Arakaki Brian L. Clarke

Edward Bugarin Allen Teshima Fran Nichols

Toby M. Kravet Richard G. Chang Robert M. Chapman

Isaac Fishman Sandra P. Burgess

Kenneth R. Conklin Jean Yokoyama Patrick Barrett

Franklin C. Wallace Frederick Lins Susan Lins

James I. Kuroiwa, Jr.

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There are several documents on this website all related to the ceded lands case OHA vs. State of Hawai'i. You have just finished reading one of them. There was an amicus brief filed May 27, 1999.

Amicus Brief filed May 27, 1999 in Hawaii Supreme Court in OHA vs. State (OHA lawsuit seeking 20% of revenues from Hilo Hospital, Waikiki Duty Free Shoppers, public housing and other revenues). Amicus brief points out that OHA laws violate Constitution of United States.

Also, on March 28, 2000 a multi-racial group of 23 citizens of Hawaii MOVED TO INTERVENE in OHA v. State in the Hawaii Supreme Court. Their MEMO IN SUPPORT charges the State Attorney General has a conflict of interest because he represents the interests of OHA in the Rice case. Their PROPOSED BRIEF challenges the validity of OHA itself based on the RICE DECISION.

If you are finished with the materials related to the ceded lands case OHA v State of Hawai'i, then you may

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(c) Copyright 2000 Kenneth R. Conklin, Ph.D. All rights reserved