Gov. Neil Abercrombie came into office promising a new day.

But he won’t be able to forget yesterday’s problems. The new governor inherited the burden of at least a dozen class action lawsuits that were filed against the state under previous administrations.

The class actions suits – which could cost Hawaii as much as $200 million – may complicate the governor’s pursuit of his own agenda at a time when the state’s finances are still troubled. His response to the lawsuits may be an early sign of how his administration will contrast with former Gov. Linda Lingle‘s.

Not to mention provide a clear indication of how his top legal adviser, the yet-to-be-named attorney general, will differ from Lingle’s pick, Mark Bennett.

Class action suits, which can often result in large monetary outcomes because a single case can literally represent thousands of plaintiffs, have a history in Hawaii politics.

Landmark cases like the Felix class action suit from 1993 forced the state to spend more than a billion dollars to improve education services for disabled students. More recently, a class action suit was brought (and dropped) against Hawaii to try and halt Furlough Fridays in schools.

Paul Alston of the law firm Alston Hunt Floyd & Ing says Abercrombie’s choice of an attorney general is critical as the individual will have significant sway over the outcome of the cases. Alston’s firm is representing plaintiffs in a dozen class action suits against the state. (Abercrombie’s transition director, Bill Kaneko, is a lawyer at the firm.) Attorney Eric Seitz also has a class action suit against the state stemming from overcrowded conditions at the Hawaii Community Correctional Center in Hilo.

“They have lots of leeway over all these cases,” Alston told Civil Beat, referring to the Abercrombie administration’s options. “There are settlements to be made in every one of these cases.”

Maunalua Bay Case

One of the bigger suits the next AG will have to deal with is the Maunalua Bay Beach Ohanas V. State of Hawaii class action case; it asserts that a 2003 statute – Act 73 – amounted to an illegal taking of private property by the state.

Act 73 claimed that natural, permanent accumulations of sand belonged to the public, not beachfront property owners. The case dealt with accreted land, essentially the opposite of erosion, where properties have grown over the years because of constantly changing shorelines. A group of beachfront property owners, who called themselves the Maunalua Bay Beach Ohana, filed suit against the state saying that Act 73, which transferred ownership of accreted lands to the government, was illegal.

On Dec. 30, 2009, the Intermediate Court of Appeals ruled on the case, saying that owners did not have a right to future accreted land but that accreted land accumulated before 2003 that the state claimed had been taken unlawfully.

Alston said the judgment could amount to more than a $100 million tab for the Abercrombie administration. The next attorney general will have to settle the case with property owners, determining if the state will pay the citizens for the taken land or simply return it to them. The decision could have major consequences not only for the state’s coffers but also for the public perception of how Abercrombie deals with private property rights.

Other Cases

Civil Beat requested a list of all pending class action suits against the state but the Department of the Attorney General declined our request, citing lack of resources and time constraints.

Below is a list of pending class action suits provided by Alston’s firm, reflecting the cases it has brought against the state:

Case Name Docket Number Nature Status
Kono V. Lingle Cv. No. 10-1-1966-09 KKS (1CC) Class action on behalf of active and retired public school teachers against the State of Hawaii for contract and HI constitutonal violations as a result of transfer from union health plans to state plans Plaintiffs’ motion for preliminary injunction and Defendants’ motion for judgment on the pleadings was scheduled for a hearing Tuesday.
Faletogo V. SOH Cv. No. 08-1-2608-12 RMB (1CC) Class action alleging breach of the warranty of habitability and breach of lease with respect to Hawaii’s largest public housing project, Kuhio Park Terrace. Settlement approval pending.
McMillion v. SOH Cv. No. 08-00578 LEK (USDC) Class action alleging violations of Title II of the Americans With Disabilities Act and Section 504 of the Rehabilitation Act regarding barriers to access and failure to provide reasonable accommodations with respect to Hawaii’s largest public housing project, Kuhio Park Terrace. Settlement approval pending.
R.P.K. v. Dept. of Education Cv. No. 10-00436 DAE/KSC (USDC) Class action alleging that the DOE is improperly terminating free appropriate public education for disabled students at the age of 20 instead of 22 as mandated by federal law Class certification motion pending.
Everson v. SOH (soon to change to Dannenberg v. State) Cv. No. 06-1-1141-06 PWB (1CC) Class action on behalf of State and County retirees who have been receiving inferior health care benefits. Second amended complaint, incorporating HI Supreme Court ruling in March 2010, to be filed by 12/15/10.
Maunalua Bay Beach Ohanas v. SOH Cv. No. 05-1-0904-05 (1CC) Class action Act 73 unlawfully took the accreted land of private oceanfront landowners. ICA affirmed in part and denied in part. Supreme Court denied petition for writ. Circuit court to determine damages.
Garner/Klitnerick v. SOH, Department of Education Cv. No. 03-1-000305 (1CC) and Cv. No. 05-1-0031-01 (Consolidated Class Actions) Class action by substitute teachers against the State Department of Education for breach of contract and failure to pay the correct per diem rate mandated by the applicable laws. ICA affirmed the Circuit Court’s order on the Parties’ summary judgment motions. The Hawaii Supreme Court denied the Parties’ petitions for writ. These consoliated class actions have been remanded back to the Circuit Court to determine damages.
Kawashima v. SOH, Department of Education Cv. No. 06-1-0244-02 Class action by part-time teachers against the State Department of Education for breach of contract and failure to pay the correct hourly mandated by the applicable laws. This class action is related to the substitute teachers’ class action (Garner/Kliternick, above). The action was stayed pending the interlocutory appeal of the Garner/Kliternick class actions. We are in the process of seeking to lift the stay on this class action.
Sound v. Koller Cv. No. 09-00409 JMS/KSC (USDC) Class action seeking to halt reduction in benefits to COFA and New Residents. Plaintiffs obtained TRO and stipulated TRO on due process grounds. Plaintiffs awareded attorneys fees and costs of $58k. Appeal pending in USCA9.
Korab v. Koller Cv. No. 10-00483 JMS/KSC (USDC) Class action seeking to halt reduction in benefits to COFA Residents. SOH’s motion to dismiss denied. Parties are in discussions regarding language for preliminary injunction.
Bohn v. Koller Cv. No. 10-00680 DAE/LEK (USDC) Class action arising from SOH failure to timely process food stamp applications. Complaint and motion for class certification filed 11/17/10. Hearing on motion scheduled for 2/14/11.
HDRC v. SOH, Dept. of Health, et al. Cv. No. 10-1-1357-06 VLC (1CC) Class action seeking to reverse cuts to benefits and services provided to mentally-ill adults. Settlement negotiations failed. First amended complaint filed on 11/23/10. Motion for summary judgment filed on 11/29/10. Defendant withdrew initial motion to dismiss re: standing but another is expected next week.

Alston described the financial implications of some of the cases above (He emphasized these were just estimates, and that he didn’t have figures for all of them): The Kono case could be north of $10 million; The Faletogo and McMillion cases, in terms of the repairs required, will fall in the range of $5 to $10 million; The R.P.K. case will be in the millions; The Everson case could come to more than $10 million; The Maunalua case could come to more than $100 million; The Garner/Klitnerick case could range anywhere from $20 million to $30 million; The Sound and Korab cases could be up to $20 million; The HDRC case could be “huge” and could be in the tens of millions of dollars.

Just from the dozen class action suits Alston’s firm is handling, Abercrombie could be on the hook for close to $200 million. That’s bad news for a governor walking in to an already difficult budget situation, and especially bad news for a governor who has promised more government services.

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