H. William Burgess

H. William Burgess (March 13, 1929-March 16, 2016) was an attorney who lived in Hawaii.^[1] He and his wife Sandra Puanani Burgess, who is of Chinese, Filipino and Hawaiian ancestry, were opponents of the Hawaiian sovereignty movement and of government programs that benefit Native Hawaiians preferentially. Burgess was instrumental in bringing two controversial lawsuits seeking to have such programs declared unconstitutional.

Notable cases

Arakaki v. State of Hawaii

In July 2000, Burgess filed suit against the State of Hawaii on behalf of 13 plaintiffs, among them Kenneth R. Conklin. The lawsuit, Arakaki v. State of Hawaii, challenged the requirement that trustees of the Office of Hawaiian Affairs (OHA) be of Hawaiian ancestry, on the basis of the Fourteenth Amendment, the Fifteenth Amendment and the Voting Rights Act. In August 2000, U.S. District Judge Helen Gillmor ruled against the OHA requirement, clearing the way for the plaintiff, Conklin: a non-Hawaiian, to make an unsuccessful election bid for OHA office that November.^[2] Two years later, in December 2002, the United States Court of Appeals for the Ninth Circuit upheld Gillmor's ruling clearing the way for all non-Hawaiians to run for election, and to serve if elected, as trustees of OHA, but based the ruling only on the Fifteenth Amendment finding it unnecessary to rule on the Fourteenth Amendment.

Arakaki v. Lingle

In March 2002, Burgess teamed up again with another attorney, Patrick W. Hanifin, to file a second lawsuit, Arakaki v. Lingle, on behalf of 16 plaintiffs challenging the constitutionality of OHA and the Hawaiian Homes Commission Act, demanding they be dismantled. In November 2003 U.S. District Judge Susan Oki Mollway removed the Hawaiian Homelands-related entities and the U.S. federal government from the suit and in January 2004 dismissed the rest of the suit on the grounds that legislatures, not courts, should decide the questions at issue. In August 2005, a 2 to 1 decision by the U.S. Ninth Circuit Court of Appeals reversed Mollway, finding that state taxpayers had standing to challenge appropriation of tax moneys to OHA.

Arakaki v. Lingle: Filings in the U.S. Supreme Court

On February 2, 2006, Hawaii Governor Linda Lingle petitioned the U.S. Supreme Court for a writ of certiorari, arguing that state citizens, "simply because they pay taxes to the state," may not challenge her and other officials' use of some public money, land and privileges exclusively for one race. The petition asks the high court to grant certiorari and resolve the "very important and fundamental state taxpayer standing questions" presented.

The plaintiffs, Earl Arakaki and 13 other Hawaii residents, saw the Governor's petition as an opportunity for the Supreme Court to resolve all standing questions. On March 3, 2006, the plaintiffs filed a Conditional Cross-Petition for a Writ of Certiorari, asking the Supreme Court, if it grants the Governor's petition, to also grant theirs; and review all the "standing" orders including those dismissing plaintiffs' "very important and fundamental" trust beneficiary standing, as well as the unprecedented orders restricting their state taxpayer standing.

On March 7, 2006 the plaintiffs filed a Brief in Opposition to the Governor's argument, pointing out that they do not sue "simply because they pay taxes," but because the state does not treat all taxpayers equally. It singles out plaintiffs and other taxpayers similarly situated and denies them the benefit of the part of their taxes used exclusively for those of the favored racial ancestry.

On March 9, 2006, twenty states filed an amicus curiae brief in support of the Governor of Hawaii's petition. They argue that "certiorari is necessary to restore certainty to the law."

On May 8, 2006, the Solicitor General filed a brief for the United States in opposition to the cross petition, arguing that the Plaintiffs lack standing to sue because the U.S. "does not require the State of Hawaii to impose taxes to support those undertakings." As to Plaintiffs' trust beneficiary claims, the Solicitor-General argues that the HHCA and Admission Act "extinguished any trustee role that the United States might once have had."

The plaintiffs filed their reply brief on May 17, 2006.

Aloha for All

In 1999 Burgess and his wife, Sandra Puanani Burgess, created the Aloha for All website, www.Aloha4all.org to spread their message that 'Aloha is for everyone': Every citizen of Hawaii is entitled to the equal protection of the laws whatever his or her ancestry. In 2003, former Honolulu Advertiser publisher Thurston Twigg-Smith founded a limited liability corporation called "Aloha for All".

An August 14, 2005 Honolulu Advertiser article reported that Burgess was both lead attorney for Aloha for All and legal counsel for the Grassroot Institute of Hawaii, a second non-profit which has gained prominence through its intense lobbying campaign against the Akaka Bill. In response, both Burgess and Grassroot Institute of Hawaii stated that Burgess was a member but has never been legal counsel for Grassroot Institute of Hawaii; and that Grassroot's role with respect to the Akaka bill had been to foster public education and discourse which had previously been woefully inadequate considering the potentially profound consequences of the bill.

Notes