Friday, August 31, 2012

 

First impression: Hawaiians could have a long slog ahead before the Hawaiian Homelands case delivers for them


by Larry Geller

I attended today’s installment of the long-running Hawaiian Homelands trial in circuit court today (see: Hawaiian Homestead case scheduled to resume Friday in Circuit Court, 8/30/2012). It was good to meet some of the same beneficiaries (plaintiffs) who attended so many days of the original trial again and to see that they are still hanging in there.

At this time I’m not yet comfortable reporting on what took place. I need to review my notes and look at some of the filed documents again. I did run into Star-Advertiser veteran court reporter Ken Kobayashi at lunch time and conveyed something like “hey, you should be over at Circuit Court, the Hawaiian Homelands case is raging over there right now.” Later on, two people I didn’t recognized appeared in the courtroom and took notes. So perhaps there will be something in the newspaper on today’s hearing.

Judge Eden Hifo had this case previously but has since retired. Today Judge Virginia Lea Crandall presided. While Judge Hifo demonstrated that she knew every angle, every nook and cranny of the case during her long tenure with it, Judge Crandall did not seem to understand it. I hope I never appear before her, of course, but the impression I gained was quite strong that she might not have read all the material or did not understand it.

Most notably: the trial itself is over. This is the damage phase. Yet Judge Crandall allowed the state to re-introduce matters that I recalled were settled at trial and should not now be re-opened. The effect of that will be further delays in settling Native Hawaiian claims and possibly more years before those damaged can receive compensation.

For example, one issue that was raised by the state today was the matter of financing of homes to be built on the land. The attorneys held that claims for damages should be cut off at the point a beneficiary was offered an award but could not qualify for a mortgage, for example.

If I recall correctly, one of the witnesses three years ago testified that she could have qualified for a mortgage while she was working, but she was held so long on the waiting list that she was no longer working when she got her offer and could not qualify for a loan. Clearly, she was damaged by the long delay on the part of the state in granting her an award. In any case, the trial established that there was no requirement that a beneficiary take out a loan. Any beneficiary could have sold the land or passed it on to other beneficiaries, for example, to their benefit.

Still, Judge Crandall allowed this matter to be re-argued. It must have been frustrating for the plaintiffs present in the room and for their attorneys.

As plaintiff attorney Carl Varady reminded the court,

There’s nothing that requires beneficiaries to borrow, to invest themselves, and there’s nothing that says they have to build a structure to occupy. … There are no financial qualifications to receive a homestead lot. … Occupancy is not building. Occupy means to occupy. That’s all it means.

[The purpose of the Act] is rehabilitation. To rehabilitate. … It’s not to reward people whose middle class or upper class circumstances provide the financial wherewithal to get private funding.

Varady had to review the intention of the Legislature and rehash some history, including the opposition of the Cayetano administration and his Attorney General to the program. He calmly and patiently did his review. I am certain I could not remain so cool under the same circumstance.

None of that “reminding” or “re-arguing” should have been necessary.

Judge Crandall denied something over half of the state’s motions and proposed rules and approved something less than half. I have no idea what the next steps will be. The adoption of several of the state’s rules seems to guarantee that there will be further delays in sorting out who might not be qualified for receiving damages although they are class members, and the rules appear to fly in the face of the purpose of a class action suit to swiftly bringing redress to this long-suffering class.

The case has been running since 1999.  Isn’t it about time that there was some justice for the beneficiaries and their families from a trust that the state accepted at the time of statehood and has so badly administered up to the present time? Where is Governor Abercrombie on creating further delays for Native Hawaiians?

More at a later time, perhaps, after I review my notes and do some reading.



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