Ka Wai Ola - Office of Hawaiian Affairs, Volume 15, Number 5, 1 May 1998 — Arbitration of ceded lands dispute suggested by Moon [ARTICLE]

Arbitration of ceded lands dispute suggested by Moon

Where are Judge Heely s 1996 decisions in OHA vs. State going?

By Paula Durbln TWO LOWER court decisions by Judge Daniel Heely in the lawsuit OHA v. State are currently the eenterpiece of the ongoing dispute over how mueh money the State of Hawai'i owes the Office of Hawaiian Affairs. As attorneys argued in the state's appeal of those decisions on April 20. Hawai'i Supreme Court Chief Justice Ronald Moon seemed to suggest their clients try to reach a settlement. Andrew Frey, the New York attorney retained by the state, and OHA's attorney, James Duffy, eaeh had half an hour to argue the points covered in pages of legal briefs, whieh, stacked up. measure

nearly a foot in height. Frey insisted that the $130 million OHA received from the state in 1993 was in full settlement of OHA's claims for revenues not previously paid and, if not, any additional amount owing should be determined by the legislature, not the court. He said the court should reverse Judge Heely's decision that OHA's case was properly before the court as well as the judge's decision that OHA was entitled to 20 percent of the rent paid by the Waikiki Duty Free shop, Hilo Hospital and several housing projects. Duffy argued the $130,000,000 settlement had not extinguished OHA's other claims and urged Judge Heely's decisions be affirmed. Both attorneys used mueh of their time

responding to the court's questioning whieh Chief Justice Ronald Moon initiated early in the proceedings. The five justices asked the attorneys to address several technical issues such as whether payments to OHA should be calculated on the basis of the state's gross or net revenues or if the state could even be sued in the first plaee. But mainly the chief justice seemed to be urging a eompromise. At several points, Justice Moon asked whether the parties had exhausted all alternatives to litigation. He appeared to indicate his belief they had not and to recommend they try "ADR," alternative dispute resolution, including binding arbitration. "I think we could live with ADR,"

Duffy responded. "The state would be happy to participate," Frey said when Justice Moon raised the point during his rebuttal, "but it must not cut out the legislature." Among the spectators crowding the courtroom was University of Hawai'i law professor Jon Van Dyke. "The chief justice is clearly looking at ADR as a possible alternative," he commented. "He sees Act 304 as mandating some sort of settlement, including binding arbitration. Speaking with reporters, Duffy later clarified, "We would want to be sure we were in binding arbitration that would be funded." The state's debt to OHA is estimated in the hundreds of millions of dollars. Asked whether OHA was willing to eonsider the state's financial straits in any attempt to reach a settlement, Duffy answered, "Very mueh, we are. Everybody in the state has been affected and it would be taken into consideration. We all live here and we are all part of the problem." The Supreme Court is expected to take up to a year to rule in this case. ■ *