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Oral Argument Before the Hawaii Supreme Court–SCAP-18-0000068

No. SCAP-18-0000068 Wednesday, August 21, 2019, 8:45 a.m.

 LEONA KALIMA; DIANE BONER; RAYNETTE NALANI AH CHONG, special administrator of the estate of JOSEPH CHING, deceased; CAROLINE BRIGHT; DONNA KUEHU; IRENE CORDEIRO-VIERRA; and JAMES AKIONA, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees/Cross-Appellants, vs. STATE OF HAWAIʻI; STATE OF HAWAIʻI DEPARTMENT OF HAWAIIAN HOME LANDS; STATE OF HAWAIʻI HAWAIIAN HOME LANDS TRUST INDIVIDUAL CLAIMS REVIEW PANEL; DAVID Y. IGE, in his official capacity as Governor of the State of Hawaiʻi, Defendants-Appellants/Cross-Appellees.

     The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliʻiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
 Attorneys for plaintiffs-appellees/cross-appellants Leona Kalima, et al.:

Carl M. Varady of Law Office of Carl M. Varady and Thomas R. Grande of Grande Law Offices

Attorneys for defendants-appellants/cross-appellees State of Hawaiʻi, et al.:

Clyde J. Wadsworth, Solicitor General; Kimberly T. Guidry, Robert T. Nakatsuji, and Kalikoʻonalani D. Fernandes, Deputy Solicitors General

NOTE: Certificate of Recusal, by Associate Justice Sabrina S. McKenna, filed 01/25/19.

NOTE: Order assigning Circuit Court Judge Matthew J. Viola, in place of McKenna, J., recused, filed 01/29/19.

NOTE: Order granting Application for Transfer, filed 02/05/19.

COURT: Recktenwald, C.J., Nakayama, Pollack, and Wilson, JJ., and Circuit Court Judge Viola, in place of McKenna, J., recused.

Listen to the entire audio recording in mp3 format  ]

Brief Description:

This transfer case concerns the calculation of damage awards to beneficiaries of the Hawaiian Home Lands Trust (“the trust”) who were injured as a result of the State of Hawaii’s (“the State”) breaches of the trust.  Petitioners are beneficiaries of the trust whose time on the waiting list to receive homestead land was prolonged due to the State’s breaches of the trust.

In Kalima v. State (Kalima I), 111 Hawaiʻi 84, 137 P.3d 990 (2006), this court held that Petitioners were permitted to file a complaint seeking individual damages under Hawaiʻi Revised Statutes Chapter 674.  On remand, the Circuit Court of the First Circuit (“the circuit court”) first found the State liable for various breaches of the trust.  It later adopted a fair market value based damages model to calculate the damages to be awarded to each waiting list beneficiary.  Another trial was held to resolve methodological issues regarding the circuit court’s fair market value model.  In 2018, the circuit court entered a final judgment.

On appeal, the State contends that the circuit court erred in (1) establishing an overbroad subclass list; (2) finding that the State breached its trust duties by not recovering lands that were “withdrawn from the Trust prior to Statehood[;]” (3) adopting a damages model that is not connected to the breaches of trust that were found by the circuit court; (4) adopting a damages model that fails to limit recovery to “actual damages” as required by statute; (5) applying the Oʻahu fair market rental value model for residential leases to the entire State; (6) incorrectly determining that subclass members had no duty to mitigate damages until 1995; (7) incorrectly providing for temporary suspension of damages when claimants “deferred” from participation in a homestead offering; and (8) shifting the burden of proof to the State on essential elements of Petitioners’ case.

On cross-appeal, Petitioners argue that the circuit court erred in (1) ruling that beneficiaries must prove out-of-pocket expenditures to recover individual damages; (2) ruling that a waiting list subclass member’s “deferred” status suspends their individual damages; (3) imposing a six-year delay before individual damages accrue; (4) not bringing damages to present value; and (5) adopting the “best fit” curve and reducing individual subclass damages.