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The Supreme Court told the state to move forward nearly two years ago but courts and attorneys are still sorting out the details while Hawaiians wait.
Kealoha Kelekolio is one of thousands of Native Hawaiians who have waited decades for a piece of land managed by the state Department of Hawaiian Home Lands.
Hawaiian beneficiaries like Kelekolio scored a victory in 2020 when the Hawaii Supreme Court ruled that the state fell short in its duty to manage the land trust and declared that a process for individuals on the waitlist to collect payments from the state should move forward.
But that hasn’t happened yet. And attorneys for the state and Hawaiian plaintiffs are still sorting through legal issues in the aftermath of the high court’s ruling. Hashing out those issues could stretch well into 2022, according to recently filed court documents.
And that’s not including the claims process that a state court still needs to rule on.
Kelekolio first applied for an agricultural lot in 1979. Now, he’s left wondering when a resolution will come in this case that’s more than 20 years old.
“If I’d been on the land, I’d be able to take care of myself,” he said. “But I’m 75 now, how much longer do I have?”
Hawaiian beneficiaries sued the state in 1999 after the failure of an administrative process to help people who waited for years for homesteads. Leona Kalima, a beneficiary and advocate, is the lead plaintiff in the case.
The Supreme Court first ruled on the case in 2006, in a decision that’s now called Kalima I. That case established that the more than 2,700 plaintiffs who were part of the class action could seek monetary damages from the state, the Honolulu Star-Bulletin reported in 2006.
The Hawaii Supreme Court’s 2020 ruling, called Kalima II, sought to resolve some of the biggest issues in the case. It reaffirmed that 2,721 individuals who had to wait for leases are entitled to damages because of the state’s failure to manage the land trust; that damages started accruing from the time plaintiffs applied to be on the waitlist; and that fair market rental values should be used to calculate damages owed to each plaintiff.
The high court sent the case back to the First Circuit Court to sort out the claims process. But both sides now say there are more issues to sort through.
Attorneys for the beneficiaries and the state met in court Thursday to work through some of those differences.
“Defendants appear to want to play 20 more years of hide-and-seek, while (beneficiaries) continue to die, waiting for relief to which they are entitled.” — Attorney Carl Varady
Earlier this year, the state contracted the law firm Farm Benedict Sugihara to assist with the case and provide legal counsel for the state. The contract is worth up to $200,000.
Gary Yamashiroya, a spokesman for the state Attorney General’s Office, said in a statement that the state plans to file additional legal briefs in February to settle outstanding issues including how the claims process will be administered, how to calculate damages for eligible claimants and when exactly those damages stopped accruing.
But hearings on those motions aren’t expected to start until March, according to minutes of a November status conference.
In addition, both the state and the plaintiffs are seeking information from each other to verify the list of beneficiaries that could be entitled to damages. The state has argued it has the right to information that could help it determine if anyone should be disqualified from the list.
Attorneys Carl Varady and Thomas Grande, who represent the plaintiffs, accused the state of trying to re-litigate issues that should have already been settled by the high court or other rulings.
“Defendants appear to want to play 20 more years of hide-and-seek, while (beneficiaries) continue to die, waiting for relief to which they are entitled,” Varady wrote in a November status conference statement.
Of the 2,721 claimants who are part of what’s called the waitlist sub class, more than 400 have already died. Varady and Grande have argued that damages should be calculated before the state tries to toss anyone from the list.
State attorneys contend that the lawyers have misread the court order.
“We respectfully disagree with your characterization of the decision’s impact. Your apparent suggestion that defenses be ignored until claims are otherwise resolved is impractical and nonsensical,” the state wrote in a letter earlier this year.
Complicating matters further is a lengthy verification process the state attorneys say they still need to conduct on individual lease files to help verify information for the plaintiffs.
That process is expected to wrap up in April and has required the AG’s office to reassign deputy attorneys general to that project. Some of those deputies are taking on the extra work in addition to their normal duties defending the state in other cases, according to a letter from Deputy Attorney General Katie Lambert.
Additionally, other deputies previously assigned to the case have either retired or left the department, according to Lambert’s letter.
Even after the state’s legal issues are sorted and the lease files are verified, the court must still finalize a process for administering claims. That means hiring a claims processor, a genealogist to help beneficiaries who couldn’t previously prove their Native Hawaiian ancestry, and a court-appointed special master to oversee hearings on claims.
Rick Eichor, a retired attorney who litigated class action lawsuits in Hawaii, said that the major fight in these types of cases usually happens in the beginning, where the parties being sued try to argue against forming a class in order to drag plaintiffs into dozens of individual lawsuits.
Typically, once there’s a process for calculating damages, everything starts falling into place.
Eichor said this case is unique because of all the issues it raised and the “monumental” legal fights that sent the case to the state Supreme Court twice.
How long the case lasts could depend on how willing each side is to duke it out.
“It depends on how much fight you’ve got,” Eichor said. “And the state’s got a lot of fight because it’s such a potentially huge damage action.”
That’s a fight that Kelekolio, who now lives in Maili, hopes could be resolved soon. His parents first applied in the 1950s, but decided to buy a home instead. His brother and sister who also waited for home lands died while on the waitlist, he said.
Given Hawaii’s improved budget picture, he hopes the state would prioritize funding for settlements in the case.
“It would certainly help if they made some recompense,” he said.
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