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State had a chance to resolve claims 'long ago,' Waihee says

By Rob Perez

LAST UPDATED: 4:39 p.m. HST, Feb 12, 2014

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Over the years: Kalima v. State explained »

It was supposed to be an informal, relatively inexpensive process, similar to filing a workers' compensation claim.

In the early 1990s, the state created an administrative panel to hear breach-of-trust claims from Native Hawaiian beneficiaries involving homesteading cases from August 1959 to June 1988. The claims ranged from inordinately long waits for leases to lost applications.

In theory, the administrative process would allow the beneficiaries to recover damages — if warranted — more quickly than if they had to go to court. The panel was charged with making recommendations to the Legislature, which had to approve any remedies.

If the beneficiaries weren't satisfied with the outcome, they also were provided an option to sue the state for acts that otherwise could not be pursued legally because of the passage of time.

In exchange for access to an administrative process, the beneficiaries were limited to recovering only actual damages — not punitive ones — and the claims had to be filed by a certain date, effectively limiting the claimant pool, according to former Gov. John Waihee, whose administration created the panel in conjunction with the Legislature.

More than 2,800 beneficiaries submitted more than 4,000 claims to the group by the 1995 deadline.

But before the panel could finish its reviews, the state disbanded it in 1999. Then-Gov. Ben Cayetano vetoed a bill that would have extended the life of the group by one year. That would have been the second extension for a body that originally was given five years to do its job.

By the time the panel was disbanded, it had processed only about half the claims, with the majority resulting in denials. The panel recommended payment of $18 million in damages to 471 claimants.

None of the damages were ever paid.

Asked if the state reneged on a promise by abandoning the administrative process, Waihee replied, "That's absolutely how I see it."

Reached by email, Cayetano, who served as lieutenant governor during Waihee's term and succeeded him as governor, referred the Star-Advertiser to his 1999 veto message and his 2009 memoir.

In the veto message, Cayetano said one year wouldn't be enough to finish the panel's work. He questioned the validity of that work, saying the panel misapplied criteria and the formula for damages, and also raised concerns about panel bias.

"This bill will perpetuate the same erroneous standards for another year," Cayetano wrote in his veto message. "This, in turn, will perpetuate the beneficiaries' misunderstanding that the panel's recommended awards are valid."

In his memoir, "Ben," Cayetano wrote: "Allowing claims as old as 40 years to be made against the state was bad policy."

But proponents of the law saw it as a way to "redress past breaches and remedy long-standing wrongs," as Peter L. Trask, then-chairman of the panel, told legislators in 1999.

Waihee said it's unfortunate that the panel was unable to complete its work. "If it had, this issue would have been resolved long ago, as it should have been."

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Over the years: Kalima v. State explained »

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