TESTIMONY OF
THE DEPARTMENT OF THE ATTORNEY GENERAL
THIRTIETH LEGISLATURE, 2019____________________ _________

L/iTE T£ST!MO.n4Y
ON THE FOLLOWING MEASURE;
H.B. NO. 942, MAKING APPROPRIATIONS FOR CLAIMS AGAINST THE STATE, ITS
OFFICERS, OR ITS EMPLOYEES.
BEFORE THE:
HOUSE COMMITTEE ON JUDICIARY
DATE:

Wednesday, February 6, 2019

LOCATION:

State Capitol, Room 325

TESTIFIER(S):

TIME: 2:20 p.m.

Clare E. Connors, Attorney General, or
Caron M. Inagaki, Deputy Attorney General

Chair Lee and Members of the Committee:
The Department of the Attorney General supports this bill.
The purpose of this bill is to seek appropriations to satisfy claims against the
State, its officers, or its employees, including claims for legislative relief, judgments
against the State, settlements, and miscellaneous claims.
The bill contains ten (10) claims that total $888,010.95. Nine (9) claims are
general fund appropriation requests that total $875,844.50, and one (1) claim is an
appropriation request from a departmental fund that totals $12,166.45. Attachment A
provides a brief description of each claim in the bill.
Since the bill was introduced, three (3) new claims have been resolved for an
additional $241,245.29. The claims are appropriation requests from the general fund.
Attachment B provides a brief description of the new claims.
Including the new claims, the appropriation requests total $1,129,256.24
allocated among thirteen (13) claims. Of this total $1,117,089i79 are general fund
appropriation requests, and $12,166.45 are appropriation requests from departmental
funds.
The Department has had a longstanding policy of advising agencies as to how to
avoid claims such as those in this bill. The Department also has complied with section

 Testimony of the Department of the Attorney General
Thirtieth Legislature, 2019
!
I

37-77.5, Hawaii Revised Statutes, which requires the Attorney General to develop and
implement a procedure for advising our client agencies on how to avoid future claims.
We respectfully request passage of this bill with the additional appropriations and
amendments.

757003-1

'

 ATTACHMENT “A’
DEPARTMENT OF ATTORNEY GENERAL:
Aloha Pregnancy Care and Counseling
Center, Inc. v. Suzuki, et al.
Civil No. 17-00343, USDC

$

2 0 ,3 4 4 .5 0 (General Fund)

Settlement

This is one of two lawsuits brought in the U.S. District Court for the District of Hawaii
against the Attorney General by religiously affiliated pregnancy centers, and an
organization composed of religiously affiliated pregnancy centers, challenging the
constitutionality of Act 200, Session Laws of Hawaii 2017 (“Act 200”). Act 200 requires
“limited service pregnancy services,” as that term is defined in the act, to disseminate a
written notice to clients or patients informing them that Hawaii has public programs that
provide immediate free or low-cost access to comprehensive family planning services,
including all FDA-approved methods of contraception and pregnancy-related services
for eligible women. Act 200 was modeled after California’s Freedom, Accountability,
Comprehensive Care, and Transparency Act (“FACT Act”), which required certain
licensed pregnancy centers in California to post a notice similar to the notice required
under Act 200. California’s FACT Act was the subject of a similar constitutional
challenge in Nat’l Inst, of Family & Life Advocates v. Becerra, brought in the Southern
District of California, which was appealed to the United States Supreme Court. On June
26, 2018, the Supreme Court issued its opinion in Nat’l Inst, of Family & Life Advocates
V. Becerra. 2018 WL 3116336 (U.S. June 26, 2018), holding, in a 5-4 majority opinion,
that the licensed notice likely violates the First Amendment. After the Supreme Court
issued its decision, there was little choice but to resolve the matter without further
litigation.
DEPARTMENT OF EDUCATION:
Miller-Potter v. State of Hawaii, et al.
Civil No. 16-1 -0385K, Third Circuit

$

7 5 ,0 0 0 .0 0 (General Fund)

Settlement

Plaintiff was at a meeting on the premises of Waimea Middle School, a Charter School
maintained and operated by the State Public Charter School Commission. During the
meeting, and after it had become dark outside. Plaintiff excused herself to go to the
restroom. Unknown to school administrators, the hallway lights had burned out. As a
result, the hallway leading to the restroom was dark. While walking to the restroom.
Plaintiff tripped over a low bench that was painted brown in color, fell, and injured her
face, teeth and allegedly her left knee. As result of the accident. Plaintiff sustained
facial and dental injuries and scarring, right shoulder pain, and aggravation of a pre­
existing left knee condition that necessitated a total knee replacement. Plaintiff did not
claim lost wages, or lost future earnings. Plaintiff’s settlement demand listed related
medical expenses of $212,846.86. The case proceeded to mediation resulting in the
settlement of $75,000.

757003_1

 Testimony of the Department of the Attorney General
Thirtieth Legislature, 2019
Page 4 of 9
DEPARTMENT OF HEALTH:
Kawamoto, et al. v. Ige, et al.
Civil No. 16-00362, USDC

$

2 7 ,5 0 0 .0 0 (General Fund)

Settlement

This case involved claims against the Department of Health and the Department of
Human Services. On or about August 30, 2018 a global settlement of $55,000.00 was
achieved in this litigation. The Department of Health’s share of this settlement amount
is $27,500.00.
Plaintiffs are an elderly couple that requires a 24-hour level of nursing care, and
wanted to live together in a small, community-like, care home operated for profit to
service the elderly population of Hawaii. There are two types of these care homes in
Hawaii: community care foster family homes (“CCFFHs” ), and expanded adult
residential care homes (“ E-ARCHs” ). They both provide 24-hour nursing level of
care to elderly persons who require that level of care in a home-like, community
setting, but CCFFHs are designed for Medicaid recipients whereas E-ARCHs are for
anyone and thus primarily service “private-pay” clients, who are people that do not
receive Medicaid.
This lawsuit was about a provision in section 321-481, Hawaii Revised Statutes,
which no longer exists, that made a critical distinction between CCFFHs and EARCHs as applied to persons such as Plaintiffs who are not Medicaid recipients.
Previously, CCFFHs were statutorily defined as accommodations “for not more than
two adults at any one time, at least one of whom shall be a Medicaid recipient.” A
CCFFH could be certified for a “third adult” but that third adult also had to be “a
Medicaid recipient.” As a result, a CCFFH could not admit a married couple together
if neither was a Medicaid recipient, such as the Plaintiffs.
Plaintiffs filed this lawsuit to challenge the provision in section 321-481 that
prevented them from living together in the CCFFH of their choice. In the course of
this lawsuit, through an act of the 2007 Hawaii Legislature, the statutory wording of
section 321-481 at issue in this lawsuit has changed. Under the new statutory
wording of section 321-481, the Department of Health was provided with the
discretion to allow two private pay individuals to reside together in a CCFFH after
considering several factors. So the Plaintiffs are now allowed to live together in a
CCFFH.
The Court refused to dismiss the entire case based on mootness, and suggested
that the State could have made a “case-by-case exception for Plaintiffs’ situation” to
the statute even though the statute itself was found to be facially constitutional. To
avoid the risk of exposure to a substantial attorneys’ fee award at the conclusion of
trial, the State negotiated the present settlement amount to resolve the case in full.
. 757003-1

 Testimony of the Department of the Attorney General
Thirtieth Legislature, 2019
Page 5 of 9
DEPARTMENT OF HUMAN SERVICES:
Doe 1, John, et al. v. Department of
Human Services, et al..
Civil No. 14-1-0554(2), Second Circuit

$ 5 8 5 ,0 0 0 .0 0 (General Fund)

Settlement

The plaintiffs, John Doe 1 and John Doe 2, alleged that they were sexually molested by
their foster care provider, Florentine Rios. Mr. Rios had changed his name to “Zack
Morris” and a background check into “Zack Morris” did not uncover any information.
John Doe 1 was placed with Mr. Morris and his wife. There was a physical altercation
between John Doe 1 and Mr. Morris and, at that time, John Doe 1 claimed that Mr.
Morris had sexually abused him. Mr. Morris claimed that John Doe 1 had assaulted
him. The police and the court sided with Mr. Morris. The Department of Human
Services’ (DHS) investigation classified the sexual abuse allegation as “unconfirmed.”
John Doe 1 was then removed from the Morris home. Mr. Morris sued DHS for
discrimination for not placing any foster children with him and won. Despite lingering
suspicions, DHS placed a second child, John Doe 2, with the Morrises at the request of
John Doe 2’s mother. It was not until a third child (John Doe 2’s younger brother) was
placed with the Morrises and reported sexual abuse to his therapist, were John Doe 2
and his brother removed from the home. Plaintiffs’ expert opined that both boys suffer
from multiple issues, including PTSD, delayed education, and alcoholism, as a result of
the sexual abuse.
Kawamoto, et al. v. Ige, et al.
Civil No. 16-00362, USDC

$

2 7 ,5 0 0 .0 0 (General Fund)

Settlement

This case involved claims against the Department of Health and the Department of
Human Services. On or about August 30, 2018 a global settlement of $55,000.00 was
achieved in this litigation. The Department of Human Services’ share of this settlement
amount is $27,500.00.
Plaintiffs are an elderly couple that requires a 24-hour level of nursing care, and
wanted to live together in a small, community-like, care home operated for profit to
service the elderly population of Hawaii. There are two types of these care homes in
Hawaii: community care foster family homes (“CCFFHs” ), and expanded adult
residential care homes (“ E-ARCHs” ). They both provide 24-hour nursing level of
care to elderly persons who require that level of care in a home-like, community
setting, but CCFFHs are designed for Medicaid recipients whereas E-ARCHs are for
anyone and thus primarily service “private-pay” clients, who are people that do not
receive Medicaid.
This lawsuit was about a provision in section 321-481, Hawaii Revised Statutes,
which no longer exists, that made a critical distinction between CCFFHs and E757003-1

 Testimony of the Department of the Attorney General
Thirtieth Legislature, 2019
Page 6 of 9
ARCHs as applied to persons such as Plaintiffs who are not Medicaid recipients.
Previously, CCFFHs were statutorily defined as accommodations “for not more than
two adults at any one time, at least one of whom shall be a Medicaid recipient.” A
CCFFH could be certified for a “third adult” but that third adult also had to be “a
Medicaid recipient.” As a result, a CCFFH could not admit a married couple together
if neither was a Medicaid recipient, such as the Plaintiffs.
Plaintiffs filed this lawsuit to challenge the provision in section 321-481 that
prevented them from living together in the CCFFH of their choice. In the course of
this lawsuit, through an act of the 2007 Hawaii Legislature, the statutory wording of
section 321-481 at issue in this lawsuit has changed. Under the new statutory
wording of section 321-481, the Department of Health was provided with the
discretion to allow two private pay individuals to reside together in a CCFFH after
considering several factors. So the Plaintiffs are now allowed to live together in a
CCFFH.
The Court refused to dismiss the entire case based on mootness, and suggested
that the State could have made a “case-by-case exception for Plaintiffs’ situation” to
the statute even though the statute itself was found to be facially constitutional. To
avoid the risk of exposure to a substantial attorneys’ fee award at the conclusion of
trial, the State negotiated the present settlement amount to resolve the case in full.

DEPARTMENT OF LAND AND NATURAL RESOURCES:
Boucher v. Vitousek, et al.
Civil No. 16-1-155K, Third Circuit

$

7 0 ,0 0 0 .0 0 (General Fund)

Settlement

Plaintiff was driving through the intersection of Nani Kailua and Queen Kaahumanu
Highway on the island of Hawaii and was struck by a vehicle driven by an employee of
the Department of Land and Natural Resources. It is undisputed that the State
employee was solely at fault and, therefore, the State was fully liable. Plaintiff’s vehicle
was a total loss and she alleged that she suffered from post concussive syndrome,
sustained injuries to her left knee that required surgery, right knee and ankle pain, and
had hernia surgery. Plaintiff sought total damages in the amount of $450,000.

D E P A R T M E N T O F PUBLIC SAFETY:
Fraser v. Lingle, et al.
Civil No. 08-1-0709(1), Second Circuit

$

2 5 ,0 0 0 .0 0 (General Fund)

Settlement

Plaintiff, a former inmate at the Maui Community Correctional Center, was overdetained
in jail by 76 days in 2006-2007 because the jail staff applied an incorrect amount of
presentence credit leading to a miscalculation of his sentence expiration date.

757003-1

 Testimony of the Department of the Attorney General
Thirtieth Legislature, 2019
Page 7 of 9
Luong v. Sequeira, et al.
Civil No. 16-00613, USDC

$

2 7 ,5 0 0 .0 0 (General Fund)

Settlement

This case arises from an altercation that occurred at the Oahu Community Correctional
Center (OCCC) where Plaintiff was incarcerated. Plaintiff claims that during “open
module,” he and three other inmates were in his cell “talking story.” One of the inmates
was smoking in the cell. According to the Plaintiff, when an Adult Correction Officer
(ACO) came in to investigate the smoke. Plaintiff uttered an obscenity and the ACO
struck Plaintiff and knocked him down, causing him to hit his head. Smoking in the cells
is against the rules and matches or other sources of ignition are contraband. According
to the ACO, he smelled the smoke and went to investigate. He found the occupants of
the cell to be high and in a stupor. One of the inmates suddenly awoke and attacked
the ACO. In the ensuing melee. Plaintiff, still in a stupor fell off his chair and struck his
head on the concrete floor. After a bench trial in the United States District Court for the
District of Hawaii, the judge made a preliminary finding in favor of the Plaintiff and made
a provisional damages award of $35,000. The case subsequently settled for $27,500.
Johnson v. Department of Public Safety, et al.
Civil No. 15-1-0609-04, First Circuit

$

1 8 ,0 0 0 .0 0 (General Fund)

Settlement

Plaintiff, a former inmate at the Oahu Community Correctional Center (OCCC), was
overdetained in jail by 127 days because the court’s April 2, 2013, order entitling him to
release was not received by OCCC until August 7, 2013.
DEPARTMENT OF TRANSPORTATION, HIGHWAYS DIVISION:
Bowles V. Hawaiian Electric Company, et al.
Civil No. 17-1-0259-02 VLC, First Circuit

$

1 2 ,1 6 6 .4 5

(Department

Settlement Appropriation)

Plaintiff stepped into a deep, grass-covered hole on the grassy median at the
intersection of Kailua Road and Kalanianaole Highway, which is owned and maintained
by the Department of Transportation. The hole was described as about 8 feet deep and
20 inches wide. Plaintiff sustained a tibial plateau fracture, which is a fracture located at
the top of the tibia (shin bone) in the knee joint. The case proceeded to the Court
Annexed Arbitration Program, and the arbitrator awarded the Plaintiff $60,917.89. After
a reduction for Plaintiff’s comparative negligence and a credit for the amount paid by a
settling co-defendant, the State’s share of the damages and costs'totaled $12,166.45.

757003-1

 ATTACHMENT “B’
DEPARTMENT OF ATTORNEY GENERAL:
Calvary Chapel Pearl Harbor, d/b/a A Place for
Women in Waipio, et al. v. Suzuki, et al.
Civil No. 17-00326, USDC

$

4 0 ,0 0 0 .0 0 (General Fund)

Settlement

This is one of two lawsuits brought in the U.S. District Court for the District of Hawaii
against the Attorney General and the Governor of Hawaii by religiously affiliated
pregnancy centers, and an organization composed of religiously affiliated pregnancy
centers, challenging the constitutionality of Act 200, Session Laws of Hawaii 2017 (Act
200). Act 200 requires “limited service pregnancy sen/ices,” as that term is defined in
the act, to disseminate a written notice to clients or patients informing them that Hawaii
has public programs that provide immediate free or low-cost access to comprehensive
family planning services, including all FDA-approved methods of contraception and
pregnancy-related services for eligible women. Act 200 was modeled after California’s
Freedom, Accountability, Comprehensive Care, and Transparency Act (“FACT Act”),
which required certain licensed pregnancy centers in California to post a notice similar
to the notice required under Act 200. California’s FACT Act was the subject of a similar
constitutional challenge in Nat’l Inst, of Family & Life Advocates v. Becerra, brought in
the Southern District of California, which was appealed to the United States Supreme
Court. On June 26, 2018, the Supreme Court issued its opinion in Nat’l Inst, of Family &
Life Advocates v. Becerra. 2018 WL 3116336 (U.S. June 26, 2018) holding, in a 5-4
majority opinion, that the licensed notice likely violates the First Amendment. After the
Supreme Court issued its decision, there was little choice but to resolve the matter
without further litigation.

DEPARTMENT OF LAND AND NATURAL RESOURCES:
Umberger, et al. v. Department of Land and Natural
Resources, State of Hawaii, Civil No. 12-1-2625-10,
First Circuit

$ 1 6 p ,6 4 5 .2 9 (General Fund)

Settlement

Plaintiffs claim the Department of Land and Natural Resources shoujd not issue permits
allowing use of fine mesh nets to take aquatic life for commercial and recreation
aquarium purposes without a chapter 343, Hawaii Revised Statutes, study. The circuit
court granted summary judgment to the department. The Intermediate Court of Appeals
unanimously affirmed. The Supreme Court reversed and granted summary judgment to
plaintiffs. The Supreme Court held that in a chapter 343 case, a party prevailing on a
claim against the State is entitled to attorneys’ fees based on the Court’s “private
attorney general” theory. The Supreme Court previously awarded $74,491.81 for fees
and costs on appeal. That was paid last year. The circuit court has now awarded an
additional $160,645.29. No further appeals are available.
MISCELLANEOUS CLAIM:
Shim Ching

757003 1

$

4 0 ,6 0 0 .0 0 (General Fund)

 Testimony of the Department of the Attorney General
Thirtieth Legislature, 2019
Page 9 of 9
Claimant requests reissuance of an outdated check that was lost. The legislative claim
was filed with the Attorney General within six years from the date on which the claim for
payment matured, within the period specified by section 37-77, Hawaii Revised
Statutes.

757003-1