Report Title:

Special Deputy Attorneys General; Defense of Lawsuits

Description:

Appropriates funds for DHHL and OHA to appoint one special deputy attorney general each to defend against lawsuits brought by Patrick Barrett against the State, John Carroll against various state department heads based on alleged constitutional violations of certain government entities, and the Arakaki case.

THE SENATE

S.B. NO.

615

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RElating to special attorneys general.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that in 2000, two cases were filed concerning the constitutionality of certain government agencies established for the benefit of Hawaiians and native Hawaiians.

In the first case, John Carroll filed suit against the following in federal district court: chairperson of the board of agriculture; superintendent of education; chairperson of the board of land and natural resources; director of business, economic development, and tourism; director of transportation; comptroller; and trustees of the board of trustees of the office of Hawaiian affairs (OHA). This suit alleges racial discrimination with no compelling state interest and deprivation of equal protection of the laws in violation of the fourteenth amendment to the U.S. Constitution. These allegations are based on the facts that article XII, sections 5 and 6, of the state constitution and chapter 10, Hawaii Revised Statutes, grant twenty per cent of the revenue generated by the public land trust and the ceded lands to OHA to be used solely to benefit those individuals who are native Hawaiian.

The legislature further finds that:

(1) "Native Hawaiian" is defined by the Hawaiian Homes Commission Act of 1920, as amended, as "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778."

(2) "Hawaiian" is defined under section 10-2, Hawaii Revised Statutes, as "any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples have continued to reside in Hawaii."

Because the U.S. Supreme Court in Rice v. Cayetano, 528 U.S. 495, 120 S. Ct. 1044, 145 L. Ed.2d 1007 (2000), held that the definitions of "native Hawaiian" and "Hawaiian" in the laws establishing OHA are racial classifications, Carroll alleges that he was denied equal financial entitlements solely due to his racial extraction and ancestral origin. In the lawsuit, Carroll has requested the court to issue a preliminary and permanent injunction enjoining the defendants from enabling the expenditure of state revenues on the basis of race.

One day later, Patrick Barrett filed suit against the State of Hawaii and governor Cayetano alleging facts similar to those in the Carroll suit and requesting that the court find that article XII of the state constitution, the office of Hawaiian affairs, and the department of Hawaiian home lands are unconstitutional.

A lawsuit has also been filed against the State in Arakaki v. State of Hawaii, seeking to declare that the Hawaiian Homes Commission Act, sections 4 and 5(f), and portions of the state constitution and statutes relating to the office of Hawaiian affairs and the department of Hawaiian home lands are unconstitutional.

The legislature further finds that the outcomes of the Carroll, Barrett, and Arakaki cases are a matter of compelling state interest, because the entire basis of Hawaiian entitlements could be judicially abrogated. Because of the seriousness of these charges and the State's overriding interest in this lawsuit, the appointment of special deputy attorneys general to assist in the defense of the department of Hawaiian home lands and the office of Hawaiian affairs against these two lawsuits is necessary to facilitate a favorable outcome for these agencies.

The purpose of this Act is to appropriate funds to enable the department of Hawaiian home lands and the office of Hawaiian affairs to appoint special deputy attorneys general to defend against the Carroll, Barrett, and Arakaki cases in the challenges to the Fourteenth Amendment to the United States Constitution.

SECTION 2. Notwithstanding section 28-8.3, Hawaii Revised Statutes, and any other law to the contrary, the office of Hawaiian affairs and the department of Hawaiian home lands may each appoint one special deputy attorney general to defend their respective interests against the Carroll, Barrett, and Arakaki cases in the challenges to the Fourteenth Amendment to the United States Constitution. Each special deputy attorney general shall represent and be accountable solely to the office of Hawaiian affairs and to the department of Hawaiian home lands, respectively.

SECTION 3. There is appropriated out of the general revenues of the State of Hawaii the sum of $          , or so much thereof as may be necessary for fiscal year 2003-2004, for the office of Hawaiian affairs to appoint one special deputy attorney general for the purpose of defending it in Patrick Barrett v. State of Hawaii and Governor Benjamin Cayetano, civil number CV00-00645; John Carroll v. James Nakatani, et al., civil number CV00-00641; and Arakaki v. State of Hawaii (federal district court) in accordance with this Act.

The sum appropriated shall be expended by the office of Hawaiian affairs for the purposes of this Act.

SECTION 4. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2003-2004, for the department of Hawaiian home lands to appoint one special deputy attorney general for the purpose of defending it in Patrick Barrett v. State of Hawaii and Governor Benjamin Cayetano, civil number CV00-00645; John Carroll v. James Nakatani, et al., civil number CV00-00641; and Arakaki v. State of Hawaii (federal district court) in accordance with this Act.

The sum appropriated shall be expended by the department of Hawaiian home lands the purposes of this Act.

SECTION 5. This Act shall take effect on July 1, 2003.

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INTRODUCED BY:

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