At age 87, Irene Cordeiro-Vierra doesn’t expect to see a penny of relief from the state before she dies.
"Personally, I don’t think I’ll ever get anything," Cordeiro-Vierra says, blaming the state for what she considers delayed justice.
The Laie resident and former waitress is one of more than 2,700 Native Hawaiians or their heirs who are waiting for the state to pay damages for failing to deliver Department of Hawaiian Home Lands homestead lots on a timely basis.
Even though a judge more than four years ago found the state liable for breach of trust in a class-action lawsuit the plaintiffs filed in 1999, the case still is moving slowly through the damages phase and is far from being resolved. A recent attempt at court-ordered mediation failed to yield a settlement.
As with virtually everything else in this litigation, the two sides can’t agree on how much in damages is due, who is entitled to receive damages, and a host of other questions, some of which already have been decided by the court but are expected to be raised on appeal.
With no proposed settlement to present to Judge Virginia Crandall, the fifth judge to preside over the case, the nearly 15-year-old legal battle resumes in her courtroom even as more plaintiffs, mostly elderly, continue to die.
In the latest development, the plaintiffs are asking Crandall to appoint a special master to help speed the court’s fact-finding and decision-making process, citing the growing number of deceased plaintiffs. As of May, 312 had died.
But short of an out-of-court settlement, the highly complex litigation is expected to drag on for years — even if a special master is appointed — before any money changes hands.
"Justice delayed is justice denied," plaintiffs’ attorneys Tom Grande and Carl Varady wrote in their July 7 motion seeking the appointment. "Hundreds of claimants have died waiting for a judicial resolution."
The state, which opposed two prior plaintiff requests for a special master, is evaluating the latest one and has yet to take a position. A hearing on whether to appoint Keith Hunter, who heads a local dispute-resolution company, as special master is scheduled for Aug. 13 in Crandall’s courtroom.
Anne Lopez, a spokeswoman for the state attorney general’s office, told the Honolulu Star-Advertiser in an email that the state made a substantial offer to settle the claims related to homestead waits. Those claims are the predominant ones.
"While still on-going, the mediation has not resulted in a successful settlement, although the state made a substantial monetary offer to plaintiffs’ counsel to settle the claims," Lopez wrote in her email. She did not specify the amount and declined further comment.
Grande and Varady likewise declined comment, citing the confidential nature of the mediation talks.
But Cordeiro-Vierra, without providing details, called the state’s recent offer insulting, particularly in light of the long waits by DHHL beneficiaries, who must be at least 50 percent Hawaiian to be eligible for 99-year homestead leases.
"It’s disgraceful to offer pennies after years and years of waiting," she said. Cordeiro-Vierra has been on a waitlist since 1984.
Another plaintiff, Raynette Ah Chong, 53, likewise was critical of the state’s offer. She declined to say what it was, citing the confidentiality requirement, but characterized the offer as low. "It’s just disgusting," Ah Chong said. "They have a take-it-or-leave-it attitude."
An administrative panel established in the early 1990s to review breach-of-trust claims against DHHL, which oversees the 203,000-acre trust for the homesteading program, determined that Ah Chong was entitled to $103,000 in damages. The state, however, disbanded the panel before the claims were paid, opening the door for the class-action lawsuit.
Ah Chong in 1984 had put her name on the waitlist for a DHHL homestead in Waimanalo but said she was never offered a lot there.
The plaintiffs argue that all 2,721 of the original class members are entitled to damages for their long waits, in some cases lasting decades. The state contends that far fewer are eligible.
Crandall already has ruled that a plaintiff is not entitled to compensation if he or she received a homestead within six years of applying for one. She said such a wait would be considered reasonable, though the plaintiffs contend six years is too long and the state argues it should take much longer to trigger compensation. The judge also determined that the damages period would stop once a plaintiff received a homestead or declined an offer for one.
Roughly 27,000 beneficiaries are on DHHL waitlists for homesteads.
But the lawsuit, known as Kalima v. State (Leona Kalima is the lead plaintiff), covers only those beneficiaries who in the 1990s filed unresolved breach-of-trust claims with the administrative panel. The breaches involved actions by the state between 1959 and 1988.
Over the years, some beneficiaries have declined homestead offers because the land wasn’t where they wanted to live, they couldn’t afford to build a home at the time, or for other reasons.
Cordeiro-Vierra said that in the mid-1980s she turned down an initial offer for a Hawaii island parcel without infrastructure because a DHHL engineer advised her to wait for the next phase of the planned development, which would provide her with better lot choices. The next phase never happened.
While waiting for that phase, however, Cordeiro-Vierra said she spent about seven months living in an empty beach shack with no electricity or running water, shuttling between two waitressing jobs. She said she eventually gave up on a Big Island homestead and bought a residence on that island. She eventually moved back to Oahu for medical reasons.
When the administrative panel reviewed Cordeiro-Vierra’s subsequent breach-of-trust claim, it recommended she receive $79,000, she said.
For the plaintiffs’ first two motions seeking special master appointments, the court deemed the requests premature and denied them.
But the latest one comes after a key question has been resolved. Following a trial last year, the court determined rental values that will be used for a formula to calculate out-of-pocket expenses that eligible Oahu plaintiffs can claim for damages, based on their wait for a homestead.
The idea would be for the special master to apply that formula to an initial group of test cases, factor in how the prior court decisions would affect each case, then make recommendations about possible damages to the judge. As more cases are evaluated, the process presumably would move faster.
"This really is the only viable method to resolve a large number of claims short of having a panel of judges appointed," said Grande, one of the plaintiffs’ attorneys.
Lopez, the attorney general’s office spokeswoman, said the state’s prior objections to appointing a special master focused on cost and timing concerns. She said hiring a special master likely will cost hundreds of thousands of dollars, which must be borne by the two sides. The plaintiffs argue that the state, as the losing party, should cover those costs.
Lopez also said the state has not been convinced that a special master can resolve 2,721 claims faster than the judge who is already familiar with the claims and the litigation facts. Because the plaintiffs’ latest request proposes a process that differs from the previous ones, Lopez said the attorney general’s office is evaluating it.
She noted that the two sides participated in mediation discussions in January but were too far apart to reach a settlement. More recently the state made the financial offer "in the interest of reaching a resolution of this case," she added.
The plaintiffs mostly blame the state for the long delays. They say the damages continue to mount with each passing day and that taxpayers ultimately will have to pick up the tab.
"This is shameful," Cordeiro-Vierra said, "and it’s an insult to Hawaiians."
Lopez said Attorney General David Louie is understanding and sympathetic to the frustration people have over the pace of the litigation, and Louie has previously cited multiple factors to explain it, including the complexities of a case involving thousands of claims pegged to events dating as far back as a half-century ago.
Numerous issues raised by this litigation never have been addressed before by the courts, the case was on hold for 51⁄2 years while the Supreme Court ruled on an appeal, and five different judges have been assigned to it, according to Louie. More recently it took about 21⁄2 years to determine the model for calculating damages, Lopez noted.
She said her office categorically rejects the notion that the state has engaged in obstruction or stalling tactics or is solely or primarily responsible for the length of litigation.
