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Sunday, October 29, 2023
Upsetting the Apple Cart in 24-Year-Old Litigation
By Tom Yamachika @ 6:00 AM :: 1351 Views :: DHHL, Judiciary

Upsetting the Apple Cart in 24-Year-Old Litigation

by Tom Yamachika, President, Tax Foundation Hawaii

One of the longest running court cases in modern history is Kalima v. State. The case, filed in 1999, concerned 2,515 beneficiaries of the Department of Hawaiian Home Lands (DHHL) who sued the state over its handling of the Hawaiian homes program.

On July 21, Circuit Court Judge Lisa Cataldo approved a $328 million settlement that would have put the litigation in the history books once and for all.  Checks were to be issued starting October 1.

But on August 17, one person wrote a handwritten letter and filed it with the Court. That letter said:  “I wish to file an appeal before the deadline of August 31, 2023.  … The appeal is limited to the issue of Special Master and Claims Administrator failing to process my claims in a timely fashion.”

Not surprisingly, there was some confusion about what the letter writer, who obviously wasn’t a lawyer, was trying to accomplish with the letter. The Judge then took the reasonable step of scheduling a hearing in which the letter writer could be heard from, and then class counsel, the State, and the Court could figure out what to do about it.

But then, according to the Judge, hotter heads within the Attorney General’s office prevailed.  Eight days before the hearing, the State’s counsel insisted that the document “is a timely notice of appeal that must be immediately filed with the appellate court,” which meant that the ability of the Circuit Court to do anything on the case had to stop while the appellate court sorted things out. This irked the Judge to no end, as she wrote:

The State further maintains that before the settlement proceeds may be distributed to the class members, either Mr. Rivera must withdraw his appeal or the appellate court must dispose of the appeal.  The State’s position is intractable despite … at best, resolution at the appellate court level will take at least 6 months and, class counsel recently stated that 3-4 class members die per month.

This case was filed in 1999 and the foundational allegations stretch back decades.  After two trips to the Hawaii Supreme Court, and the deaths of hundreds of class members while the case remained pending, the parties reached a historic settlement in 2022.  The Final Approval Hearing was held in July 2023 and the Final Approval Order and Final Judgment were filed August 1, 2023.  [The letter] and its handling have created numerous issues, none of the class members’ making, but yet, they bear the full brunt of impact.

If any case demands that counsel bring to bear the full measure of their experience, expertise and talents to develop and consider strategies for a thoughtful, constructive, creative and legally-compliant resolution short of disposition by the appellate court, it is this one.  The State sees otherwise – even though the State cannot articulate any actual real-world risk in the distribution of settlement proceeds short of withdrawal of [the letter] or disposition by the appellate court.  Ultimately, however, it is the State's refusal to advise this Court if it would initiate its own appellate action if the Court ordered the transfer of funds – thereby even further delaying the class members’ receipt of those funds – that ensures there will be no resolution at this stage.  In light of the State's just- announced objection, and its refusal to disclose what action it might take thereafter, the risk of even more delay is too significant to move forward with the... hearing.

Perhaps in appreciation of the pickle that Judge Cataldo found herself in, the Hawaii Supreme Court decided to jump into the fray.  The Court did something creative:  it treated the letter as a petition for a “writ of mandamus,” which the appellate courts usually decide very quickly.  Once the Court decides, that’s pretty much it; there’s no higher court to which an appeal can be taken except the Supreme Court of the United States, where there needs to be a federal issue involved at a minimum.

Hopefully, those now in charge of the litigation can stop being extreme ticky-tack bureaucrats and have better appreciation for solving this problem that has plagued Native Hawaiian beneficiaries for decades.

UPDATE:  On October 26, 2023, the Hawaii Supreme Court released an opinion deciding the appeal – holding that the letter writer was not entitled to participate in the settlement – and cleared the way for the funds to be distributed.


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