Plaintiffs still await state data in Hawaiian homestead suit

Seven years after a favorable court ruling, the plaintiffs in a class-action lawsuit against the state and Department of Hawaiian Home Lands are still waiting for state documents they consider essential for calculating damages related to long waits for homesteads.

Attorneys for the 2,700 plaintiffs say at least 600 files are missing, slowing the litigation process and reflecting abysmal record keeping by DHHL.

“How do (the defendants) lose 600 files?” asked Leona Kalima, lead plaintiff in the case known as Kalima vs. State. “I think that’s appalling.”

The state disputes the plaintiffs’ contention, noting that thousands of files already have been turned over to them, that DHHL is searching for additional ones and that some files described as “missing” never were created.

The disagreement is yet another contested flashpoint in a case that began in 1999 and still has no end in sight. More than 300 of the plaintiffs, mostly elderly, have died waiting for a resolution.

The plaintiffs won a major victory in November 2009 when a state judge ruled following a trial that the defendants breached their fiduciary duty by failing to issue homesteads on a timely basis. The breaches spanned from 1959 to 1988. Some beneficiaries of the 203,000-acre land trust that DHHL manages have waited decades for a lot.

In her ruling, then-Circuit Judge Eden Elizabeth Hifo found that the defendants were liable for damages. But the amount and the process for calculating damages were set to be decided in the next portion of the case.

Seven years and a second trial later, the tab — collectively and for individual plaintiffs — still has not been determined. But the landmark case is about to shift to its next critical stage anyway.

Both sides expect Judge Virginia Crandall, who now presides over the case, to issue a judgment within the next few months that explains the process for awarding damages but doesn’t include actual amounts.

After the judgment is issued, the two sides intend to file appeals with the Hawaii Supreme Court.

Both sides are hoping the justices decide key appellate questions before the time-consuming administrative process begins for calculating damages for hundreds of plaintiffs. By resolving the appeals first, the two sides want to avoid having to go through the number-crunching process a second time if the justices change the rules for calculating damages.

No resolution soon

The two sides also are considering a more consequential possibility.

If the justices agree with the state and overturn Hifo’s 2009 ruling, the largest part of the litigation would end, precluding the need to calculate damages based on long waits for homesteads. All the plaintiffs have waitlist claims. Far fewer have claims based on other issues, such as lost homestead applications or faulty construction.

If the state loses its appeal, an administrator would be appointed to start the number-crunching phase for the waitlist damages.

Either way, no one is expecting a resolution any time soon.

The dispute over document production is basically to glean three pieces of information: the earliest date a homestead application was submitted, whether the applicant was 18 and, if a homestead was awarded, the date.

Josh Wisch, a spokesman for the Attorney General’s Office, said the search for documents takes time because of the volume of records that need to be reviewed.

He also said DHHL maintains its files “to facilitate its ongoing operations, which essentially looks forward, not backward over the more than 57 years that this case covers.”

Tom Grande and Carl Varady, the plaintiffs’ attorneys, said they have spent the past few years poring over thousands of DHHL files and found many mislabeled, misfiled, incomplete or missing, adding to the time needed to research matters.

“They are such a chaotic mess,” Varady said of the files.

More deaths expected

As the case continues to drag on, the number of deceased plaintiffs is expected to grow. A current tally was not available last week.

But in March 2013, 313 plaintiffs had died since the lawsuit was filed. The average age of the plaintiffs in 2013 was 65.

At least two of the 27 plaintiffs whose portraits were taken by the Honolulu Star-Advertiser for a special section in 2013 (808ne.ws/Kalima2013) have died since then.

“You just give up, that’s it,” said Iwalani Gomard, the sister-in-law of James Kahanui Gomard, one of the 27, who died at the age of 90, just a few months after his photo was taken. “He never did talk about (the lawsuit) that much.”

At the time of his death, James Gomard had been on the homestead waitlist for more than 50 years.

Mary Kahailauala Gomez, the second plaintiff photographed, died in July at age 83. She had been on the list about 40 years.

As with just about everything in this case, the plaintiffs and state have disagreed on how to deal with claims involving deceased plaintiffs.

In October, the state asked the court to require that a legal representative be appointed to pursue a deceased plaintiff’s claim, and that if someone isn’t appointed in a timely manner, the claim be dismissed. Otherwise, no one would be properly designated, according to the state’s court filings.

Grande and Varady maintained that the procedures for dealing with the deceased plaintiffs’ claims would be addressed toward the end of the case once a claims administrator is appointed to calculate damages on an individual basis.

“The audacity of defendants’ position is self-evident,” Grande and Varady wrote in a filing to the court. “It would be laughable but for the fact that (it) is an attempt to dismiss the claims of hundreds of class members who have died while their claims have been delayed from final adjudication for years by defendants’ litigation tactics.”

The state called the attorneys’ claims hyperbole and misstatements. But the court denied the state’s request, according to Grande and Varady.

Attorney General Doug Chin said the state has been taking steps to try to expedite a resolution to the case.

“The longer litigation lasts, frankly, the more the state might need to pay,” Chin said in a statement. “The state has an incentive to expedite the process.”

He added: “There are many reasons that this case has lasted so long. Multiple courts and multiple judges have been involved. Both plaintiffs and the state have requested additional time.”

He also said the fact that the case is a class action may have complicated the process.

Raynette Ah Chong, one of the plaintiffs, said the state is prolonging the process for one main reason.

“They’re going to wait for all of us to be dead, and they don’t give a damn,” Ah Chong said.