Honorable Robert Bunda

President of the Senate

Twenty-First State Legislature

Regular Session of 2001

State of Hawaii

Sir:

Your Committees on Hawaiian Affairs and Judiciary, to which was referred S.B. No. 1488 entitled:

beg leave to report as follows:

The purpose of this measure is to appropriate funds for the Attorney General to hire two special deputy attorneys general to assist in the defense of the State in the lawsuits brought by Patrick Barrett and John Carroll based on alleged constitutional violations of certain government entities.

Testimony in support of the measure was received from the Attorney General, the Department of Hawaiian Home Lands (DHHL), the Office of Hawaiian Affairs (OHA), and the Oahu Council of Hawaiian Civic Clubs. Three private citizens opposed the passage of the measure.

Your Committees find 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: the Chairperson of the Board of Agriculture; the Superintendent of Education; the Chairperson of the Board of Land and Natural Resources; the Director of Business, Economic Development, and Tourism; the Director of Transportation; the Comptroller; and the Trustees of 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.

Because the U.S. Supreme Court in Rice v. Cayetano, __ U.S. __, 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, OHA, and DHHL are unconstitutional.

Because of the seriousness of these charges and the State's overriding interest in this lawsuit, your Committees further find that the appointment of special deputy attorneys general to assist in the defense of OHA and DHHL against these two lawsuits would facilitate a favorable outcome for these agencies.

Your Committees have amended the measure by deleting the Attorney General's authority to appoint the two special attorneys general and instead, enabling DHHL and OHA to each appoint one special deputy attorney general to assist in the defense of their respective cases. Your Committees have also made a technical, nonsubstantive amendment for the purpose of style.

Your Committees have also inserted a provision that enables the DHHL to hire an attorney for this purpose.

Your Committees believe that the appropriation will assist DHHL and OHA in their defense of these two lawsuits.

As affirmed by the records of votes of the members of your Committees on Hawaiian Affairs and Judiciary that are attached to this report, your Committees are in accord with the intent and purpose of S.B. No. 1488, as amended herein, and recommend that it pass Second Reading in the form attached hereto as S.B. No. 1488, S.D. 1, and be referred to the Committee on Ways and Means.