Dirty Money, Dirty Politics and
PART VII - The Princess weeps...
Sightings from The Catbird Seat
~ o ~
September 5, 2009
"KAMEHAMEHA SCHOOLS OBLIGATED TO REPORT ALLEGED ASSAULT TO POLICE..." - (An Exhibit in CV05-00030 - U S Dept of Justice vs Harmon)
Saturday, September 5, 2009
Bobby N. Harmon, CPCU
"President Barack Obama" <firstname.lastname@example.org>, "U.S. Attorney General Eric Holder" <AskDOJ@usdoj.gov>, "David Farmer" <email@example.com>, "Steven Guttman" <firstname.lastname@example.org>, "Carol K. Muranaka" <email@example.com>, "Judge David A. Ezra" <firstname.lastname@example.org>, "Judge Kevin S.C. Chang" <email@example.com>, "Judge Barry M. Kurren" <firstname.lastname@example.org>, "Securities & Exchange Commission Enforcement Division" <email@example.com>, "U.S. Treasury Dept. Office of Inspector General" <firstname.lastname@example.org>, "Office of Inspector General US Dept of Justice" <email@example.com>, "Executive Office for U.S. Trustees" <firstname.lastname@example.org>, "Judge Robert Faris" <email@example.com>, "SEC Office of The Inspector General" <firstname.lastname@example.org>, "Hawaii State Bar Association" <email@example.com>, "Hugh Jones" <firstname.lastname@example.org>, "Insurance Division Fraud Branch" <email@example.com>, "Lawrence Reifurth" <firstname.lastname@example.org>, "Linda Lingle" <email@example.com>, "Jo Ann Uchida" <firstname.lastname@example.org>, "Office of Inspector General Civil Rights Complaints" <email@example.com>, "Mark Bennett" <firstname.lastname@example.org>, "American Arbitration Association" <email@example.com>, "Judith Neustadter" <Judy@tiki.net>, "Benjamin J. Cayetano" <firstname.lastname@example.org>, "All Representatives" <reps@Capitol.hawaii.gov>, "All Senators" <sens@Capitol.hawaii.gov>, "Andrew Walden" <email@example.com>, "Aon Insurance Managers" <firstname.lastname@example.org>, "Arthur Rath" <email@example.com>, "Bradley Tamm" <firstname.lastname@example.org>, "Carl Morton" <email@example.com>, "Charles Hurd" <firstname.lastname@example.org>, "David Shapiro" <email@example.com>, "Dee Jay Mailer" <firstname.lastname@example.org>, "J C Shannon" <Hapa1234@aol.com>, "James B Nicholson" <email@example.com>, "James B. Farris" <Farrisj@adr.org>, "James Cribley" <firstname.lastname@example.org>, "James Wriston" <email@example.com>, "Jeffrey Watanabe" <firstname.lastname@example.org>, "Jim Dooley" <email@example.com>, "Joe Moore" <firstname.lastname@example.org>, "John D. Finnegan" <email@example.com>, "Judson Witham" <firstname.lastname@example.org>, "Ken Conklin" <email@example.com>, "Lyn Flanigan Anzai" <firstname.lastname@example.org>, "Margery Bronster" <email@example.com>, "Michael N. Tanoue" <firstname.lastname@example.org>, "Michelle Tucker" <email@example.com>, "Nathan Aipa" <firstname.lastname@example.org>, "Paul Alston" <email@example.com>, "Randall Roth" <firstname.lastname@example.org>, "Rick Daysog" <email@example.com>, "Robert Bruce Graham" <firstname.lastname@example.org>, "Robin Campaniano" <email@example.com>, "Samuel P. King" <firstname.lastname@example.org>, "William K Slate" <Websitemail@adr.org>, "Jim Terrack" <email@example.com>, "Rocco Sansone" <firstname.lastname@example.org>, "Ted Pettit" <email@example.com>, "Laura Thielen" <firstname.lastname@example.org>, "Vaughn & Lynda Robinson" <email@example.com>, "Catbird" <firstname.lastname@example.org>, "Ian Lind" <email@example.com>, "Roy F. Hughes" <firstname.lastname@example.org>, "Jack Cashill" <JCashill@aol.com>, "Marshall Chriswell" <email@example.com>, "Laser Haas" <firstname.lastname@example.org>, "Lucy Komisar" <email@example.com>, "Democrats.com" <firstname.lastname@example.org>, "Debra Sweet" <email@example.com>, "Jane Kirtley" <firstname.lastname@example.org>, "John Jubinsky" <Jube@tghawaii.com>, "Yamil Berard" <email@example.com>, "Global Exchange" <firstname.lastname@example.org>, "William K. Black" <email@example.com>, "Carole Williams" <firstname.lastname@example.org>, "Susan Tius" <STius@rmhawaii.com>, "Human Rights in China" <email@example.com>, "Michelle Malkin" <firstname.lastname@example.org>, "Phil J. Berg" <email@example.com>, "Amnesty International U.S.A." <firstname.lastname@example.org>, "Michael Moore" <email@example.com>, "Thomas Fitton" <firstname.lastname@example.org>, "Ron Branson" <VictoryUSA@jail4judges.org>, "ACLU Online" <ACLUOnline@aclu.org>, "Louanne Kam" <email@example.com>, "Eric Martinson" <firstname.lastname@example.org>, "Bruce Nakaoka" <email@example.com>, "Oswald Stender" <firstname.lastname@example.org>, "Crystal Rose" <email@example.com>, "Peter Dale Scott" <firstname.lastname@example.org>, "IndictBushNow.org" <ImpeachBush@VoteToImpeach.org>, "National Whistleblower Center" <Imw@whistleblowers.org>, "Ernest Fukeda" <email@example.com>, "Orly Taitz" <firstname.lastname@example.org>, "The Whistler" <Whistler.Songs@gmail.com>, "F. William Engdahl" <email@example.com>, "James Paul" <firstname.lastname@example.org>, "Alex Chasck" <email@example.com>, "9th Circuit Court Mediation Program" <firstname.lastname@example.org>, "Joseph Zernick" <email@example.com>, "Glenn Beck" <firstname.lastname@example.org>... more
September 5, 2009
Kamehameha Schools obligated to report alleged
sex assault to police, Hawaii attorney says
By David Waite
Advertiser Staff Writer
Kamehameha Schools was required under state law to call police immediately after a 12-year-old girl reported being sexually assaulted repeatedly by two classmates over a three-day period that ended Monday, a prominent Family Court attorney said.
Francis "Frank" O'Brien, a private attorney who specializes in child protection matters before the court, said Hawai'i law clearly states that employees or officers of a school must notify the state Department of Human Services or the police department immediately when a student reports being sexually assaulted.
The reporting requirement applies to both public and private schools, O'Brien said.
Ann Botticelli, vice president for community relations and communications for the school, said Wednesday that school officials did not contact police after the girl reported the incident. The school relies on parents to file criminal complaints on behalf of their children, Botticelli said at the time.
Yesterday Botticelli gave what she called a fuller explanation of the process in an e-mail to The Advertiser:
"When alleged student misconduct is reported at Kamehameha Schools, our first priority is to ensure the safety and emotional security of the student. We also begin an immediate investigation of the allegation, and as soon as we have reason to believe a serious incident occurred, we notify the students' parents, and we assist and support the parents if they decide to report the incident to the police."
Two 12-year-old boys who attend the school were arrested after the girl talked to police on Monday.
The boys were arrested on six counts of first-degree sexual assault, five counts of second-degree sexual assault, three counts of kidnapping and one count of burglary.
Police said yesterday that the kidnapping count was not included in a petition filed with the Family Court to take the matter up. Officials would not say why the kidnapping counts were not included in the petition.
Botticelli said yesterday the school stands by its decision not to call police about the incident.
"If there were a mandatory reporting requirement for this situation, we would have followed it," Botticelli said in an e-mail response to questions from The Advertiser.
O'Brien said the reporting requirement has been on state law books for more than 25 years.
"It strains the credibility of the school to say it does not believe it was required to report the matter," O'Brien said.
The law also provides immunity to people who file "good faith" reports of suspected child abuse cases, including allegations of sexual assault, O'Brien said.
"If a child came to school badly beaten with obvious bruises, then, of course, we would expect the school to report the matter," O'Brien said.
The same thing should hold true if a child reports being sexually assaulted, he said.
Failure to comply with the reporting requirement is a petty misdemeanor.
State schools superintendent Patricia Hamamoto said the reporting requirement is spelled out in Chapter 19 of the Department of Education's administrative rules, which have the effect of law.
"If we suspect something is criminal, we shall report it to the police," Hamamoto said. "We shall inform the police. It means mandatory reporting. For the department, if anyone knows of any potentially criminal activity, there must be a mandatory report to police."
If she is on campus and a student reports he got beat up, "I have to pick up the phone and call the police, call the parents," Hamamoto said.
* * *
September 5, 2009
Dear President Obama, Attorney General Holder, Trustee Farmer, Mr. Guttman, Ms. Neustadter, Judge Kevin Chang, Judge David Ezra, and All Concerned:
Due to new discoveries of FACTS (not "conspiracy theories" or "political opinions" as Mr. Guttman has previously characterized my Motions) related to this lawsuit which I maintain is a "prior restraint" of my constitutional rights of Free Speech and a violation of Federal and State Anti-SLAPP statutes, I am adding the subject Exhibit.
You will find related information online at:
Trustee Farmer and Mr. Guttman, in light of this mounting evidence of fraud, bad faith, breach of trust, breach of fiduciary duties, obstruction of justice, tax evasion, libel, slander, misprision of felony, undisclosed conflicts of interest, etc., provided by this witness description and these many supporting documents, I again propose to you that we attempt to NEGOTIATE a GLOBAL SETTLEMENT in this case as well as for the lawyers professional liability claims that I have previously submitted against you and your insurance carrier(s).
If you still refuse to enter into confidential settlement negotiations in a good-faith effort to settle these matters, then I ask that you perform your mandated review of this Exhibit in accordance with Judge Ezra's prior restraint Order and advise me, whether or not, it contains any so-called "protected subject matter" as defined by the arbitrator in this case, Judith Neustadter Fuqua.
If I do not receive a response within 15 days, I will consider this to be yet another act of bad faith on the part of you and your insurance carriers, and that you will not object to any future Motions that I may make to reopen this case.
Very truly yours,
Bobby N. Harmon, CPCU, ARM
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For more, GO TO > > > Dirty Money, Dirty Politics & Bishop Estate Part III: The Scandals Begin Again
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WELCOME TO THE CATBIRD’S NEW NEST!
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May 9, 2009
Terms expiring; report cites program continuity
By Rick Daysog
Advertiser Staff Writer
A court-appointed master for the Kamehameha Schools is recommending a one-year extension for trustee Robert Kihune, whose term ends next month.
In a 117-page report filed with the state Probate Court last month, attorney David Fairbanks also recommended a one-year extension for trustee Diane Plotts and two-year extensions for board members Douglas Ing and Nainoa Thompson.
"The potential for loss of substantial institutional knowledge, wisdom, continuity, momentum and even stability is great, and the threats of an interruption in the present, established path of governance, a less-than-smooth transition ... and interruption of important, newly implemented programs are very real," Fairbanks wrote.
Kihune, a retired Navy vice admiral, will step down June 30 after having served on Kamehameha School's board since 2000.
A Probate Court-appointed trustee screening committee recently named three finalists to replace Kihune. They included state Department of Hawaiian Homes Lands Chairman Micah Kane, state Community Development Authority Executive Director Anthony Ching and former Kamehameha Schools executive and ex-DHHL Chairman Ray Soon.
Deputy Attorney General Hugh Jones, whose office serves as the legal guardian for the estate, had no comment, saying he has not yet completed his review of Fairbanks' recommendations.
A trust spokesman also had no comment but said the estate will file a response to Fairbanks' recommendations with the Probate Court shortly.
Kamehameha Schools, which was established by the 1883 will of Princess Bernice Pauahi Bishop, is a nonprofit charitable trust that educates Hawaiian children.
It is one of the nation's largest charities and is Hawai'i's largest private landowner, with more than 360,000 acres.
In addition to extending current trustees' terms, Fairbanks also recommended that future board members receive a 10-year term.
Currently, all five trustees serve five-year terms and are eligible for up to two terms. Thompson's term ends next year, Plotts' tenure ends in 2011 and Ing's term ends 2012.
Trustees earn about $90,000 a year.
Fairbanks said he was satisfied with the progress made by Kamehameha CEO Dee Jay Mailer and her management team but expressed concern about continuity within Kamehameha's boardroom in light of the recent financial challenges faced by the trust.
His report noted that the value of the trust's endowment dropped by 20.4 percent from $9.44 billion on June 30, 2008, to $7.36 billion on Dec. 31, 2008, as a result of the global financial downturn and the national economy.
(Catbird note: Not to mention the greed, corruption and mismanagement of the current Kamehameha Schools’ trustees and management who they now want to EXTEND a couple of years ... so they can lose another $2 or $3 billion???)
"The recent dramatic downturn in the economy, significant losses in investments, the decline in the real estate market with attendant reductions in revenues and lower values, and their potential adverse impact upon the trust's educational programs including outreach programs, make it critical that the transition to an essentially brand new board of trustees be as smooth as possible," he said.
March 17, 2009
Trustee Pay Revisited
by Rick Daysog
Trustees of the Kamehameha Schools received much deserved applause last month when they rejected a court-approved pay increase plan and instead took a 10 percent pay cut.
After all, it's the prudent thing to do in face of the trust’s weakened financial condition, members of the Kamehameha Schools ohana have said.
But others, including former Gov. Ben Cayetano believe the way trustee pay is set is still out of whack and opens the trust to the type of abuses that haunted the estate during the late 1990s.
Previously, trustee pay was based on a formula set by law which entitled them to up to 2 percent of the estate’s annual gross. That resulted in $1 million-a-year trustee pay checks that nearly got the trust's tax-exempt status revoked by the Internal Revenue Service.
Now, trustee pay is supposed to be set at reasonable levels. Every several years, a Probate Court-appointed panel is supposed to come up with recommendations on what those reasonable levels are.
In 2004, the panel approved raising trustees maximum pay by more than 69 percent, generating much criticism among the schools’ ohana and the state Attorney General.
Probate Judge Colleen Hirai approved that increase but trustees turned it down.
Last year, the panel approved a similar plan before trustees decided to take their pay cut. The increase was again opposed by some members of the Kamehameha ohana as well as by the Attorney General’s office.
According to Cayetano, the lack of a more permanent trustee compensation schedule exposes the trust to future controversies.
In the past, the lucrative trustee compensation served as the “root cause for the ethical and political problems” that plagued the estate during the 1980s and 1990s, Cayetano wrote in his recently published memoir “Ben.”
It not only led to corrupted trust but it also tarnished the state Legislature and the state judiciary.
No doubt, the ethical characters of current Trustees Nainoa Thompson, Douglas Ing, Robert Kihune, Diane Plotts and Corbett Kalama are unquestioned. All are dedicated to the trust’s mission of educating native Hawaiian children.
But in approving steep pay raises for the trustees, Cayetano see a potential for history repeating itself:
“One could only wonder whether the panel, the probate judge and the new trustees had learned any lessons from the Bishop Estate controversy,” he wrote.
“The failure of the new trustees to ‘clean house’ left me wondering whether the problems that vexed the old trustees and the Bishop Estate would emerge again one day when the passing of time had blurred the reasons the reforms were made in the first place.”
Tags: Ben Cayetano, Kamehameha Schools, Trustee pay
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January 10, 2009
Kamehameha Schools endowment declines by $1.7B
Meltdown in financial markets reduced value
by 18 percent, to $7.7B
BY RICK DAYSOG. Advertiser Staff Writer
The value of Kamehameha Schools' endowment plunged by more than $1.7 billion in four months due to the meltdown in the nation's financial markets.
The charitable trust said the value of its investments portfolio and real estate holdings fell 18 percent, to $7.7 billion, between June 30 and Oct. 31.
The declines reverse a stellar 2008 fiscal year when the trust's endowment increased by $367.9 million to $9.44 billion.
"While the overall diversification of our portfolio enabled us to weather the initial volatility of the 2008 equity markets, we are by no means immune to the effects of the dramatic fluctuations triggered by the U.S. and global financial challenges that unfolded in the last half of the year," said Kirk Belsby, Kamehameha Schools vice president for endowment.
Kamehameha Schools is hardly alone among the multibillion-dollar endowments affected by the turmoil in the financial markets.
Last month, Harvard University said its endowment dropped by 22 percent, or about $8 billion, over a four-month period while Yale University said the value of its investments dropped by $5.9 billion, or about 25 percent.
The State of Hawai'i Employees Retirement System saw the value of its investment portfolio drop by about $1 billion to about $9 billion since June.
"What began as an apparent cyclical downturn in the financial markets has become a world economic crisis with ramifications that reach far beyond Wall Street," Kamehameha Schools spokeswoman Ann Botticelli said.
Founded by the 1883 will of Princess Bernice Pauahi Bishop, the Kamehameha Schools is a tax-exempt charity that educates children of native Hawaiian ancestry. The trust is one of the nation's wealthiest charities and is the state's largest private landowner.
The investment downturn is not expected to have a severe impact on Kamehameha Schools' educational spending policy. That policy is based not on single-year returns, but on a five-year rolling average of the value of Kamehameha Schools' endowment.
For the fiscal year ending June 30, Kamehameha Schools said it spent $273 million on its educational programs, an increase of $23 million during the year-earlier period.
During the same period, the trust said it served more than 38,100 students, which represents an increase of 2,100 or 7.2 percent.
During the past five fiscal years, the estate said it has spent more than $1.1 billion on educational programs.
Kamehameha Schools endowment declines by $1.7B
January 9, 2009
Kamehameha Schools endowment
down 18% to $7.7 billion
By Rick Daysog, Advertiser Staff Writer
Preliminary figures for the first four months of Kamehameha Schools' fiscal year 2009 indicate the trust's total endowment value is down by 18 percent to $7.7 billion.
Final audited numbers for the endowment's financial performance will not be available until December 2009.
The Honolulu Advertiser - 01/09/09
October 29, 2008
Judge orders names be made
public in Hawaii school suit
BY RICK DAYSOG, Advertiser Staff Writer
The identities of four unnamed, non-Hawaiian students challenging Kamehameha Schools' admission policy must be made public in 10 days, a federal judge ruled yesterday.
In a 22-page order, U.S. Magistrate Judge Barry Kurren said the public, as in other civil rights cases, has "a strong interest in knowing who is using the courts to vindicate their rights."
"The severity of the threatened harm and the reasonableness of plaintiffs' fears do not weigh in favor of anonymity," Kurren wrote. "At most, plaintiffs are vulnerable children who have a reasonable fear of social ostracization."
Kamehameha Schools spokeswoman Ann Botticelli said the schools appreciated the ruling, saying, "Judge Kurren obviously deliberated carefully on the matter."
David Rosen, one of the attorneys representing the students, declined comment yesterday.
Rosen and California attorney Eric Grant previously argued that the disclosure of the students' identities would expose them to public humiliation and retaliation.
Parents of the students — who are simply known as Jacob, Janet, Karl and Lisa Doe — have said in court papers that they may drop the lawsuit if the children are not allowed to pursue their lawsuit anonymously.
The Does, who are not of Hawaiian ancestry, applied for admission to Kamehameha in the 2008-09 school year, but were rejected.
Kurren's ruling came after a 1 1/2-hour, closed-door hearing on Oct. 21.
By issuing a 10-day stay to his ruling, he allowed the students and their parents to consider whether to continue pursuing the action.
The stay also allows the Does' attorneys to appeal the ruling to U.S. District Judge Michael Seabright, who is assigned to the case.
Founded by the 1884 will of Princess Bernice Pauahi Bishop, Kamehameha Schools is a charitable trust that educates children of native Hawaiian ancestry. The estate is the state's largest private landowner and is one of the nation's wealthiest trusts, with assets of more than $9 billion.
Lawyers cite threats
In their court filings, Rosen and Grant cited anonymous threats posted on the Internet and hostile remarks attached to the comments sections of local news stories about the admissions controversy.
Grant and Rosen have noted that the threats were serious enough to prompt U.S. Attorney Ed Kubo in 2003 to issue a warning against anyone looking to harm another non-Hawaiian student, Brayden Mohica-Cummings, who was admitted to the school under a settlement agreement.
Kurren, however, ruled that Grant and Rosen didn't provide evidence of "any threat of physical or economic harm" against the Does.
Botticelli, the Kamehameha Schools spokeswoman, added that the trust's leadership "would never take any action that puts a child in danger."
"We would never engage in or condone any racial threats or actions, and we know our community wouldn't either," she said.
Adrian Kamali'i, a 2000 Kamehameha Schools graduate and president of the student-parent group Na Pua a Ke Ali'i Pauahi, said Kurren's ruling "levels the playing field."
Allowing the students and parents to pursue the lawsuit anonymously takes away any accountability and hides from the public "who is doing what and why," added Jan Dill, a 1961 graduate.
"I think it's tremendous that the judge has demanded transparency in a process that affects thousand of native Hawaiian children," Dill said. "People who take actions like this should stand up and take responsibility rather than hide behind confidentiality."
School hails ruling
Attorneys for the trust — Paul Alston and former Stanford University Law School Dean Kathleen Sullivan — said anonymity has allowed the students' lawyers to portray their clients in a sympathetic light, but gave the trust no means to say whether that portrayal is accurate.
They also noted that in the previous lawsuit challenging the school's admission policy, Grant's co-counsel John Goemans abused his client's anonymity by leaking the details of a confidential settlement.
In that suit, a separate John Doe sought to overturn the trust's Hawaiian-preference admission policy. The policy was upheld by the full 9th U.S. Circuit Court of Appeals and was headed to U.S. Supreme Court before it was settled.
The trust was able to save its admissions policy but ended up paying the student $7 million.
Beadie Dawson, a native Hawaiian attorney and former lawyer for Na Pua, said that given the stakes involved, she expects the Does to appeal Kurren's decision.
"They are looking for another damages settlement, a free hand-out," she said. "Giving them anonymity encourages others to file what I consider to be frivolous lawsuits."
August 3, 2008
Trustees’ pay to soar
Kamehameha Schools' 5 board members
await court decision on pay
BY RICK DAYSOG, Advertiser Staff Writer
The five Kamehameha Schools trustees stand to receive pay increases of 65 percent to 123 percent under a plan submitted by a court-appointed panel.
Board members Diane Plotts, Robert Kihune, Corbett Kalama and Doug Ing could see their annual compensation jump from about $100,000 to about $187,000, according to the report filed in state Probate Court on Thursday.
Chairman Nainoa Thompson could see his compensation increase to a maximum of $217,500 from the $97,500 he earned last year.
The Probate Court-appointed trustee compensation committee said its recommendations reflect the complexities of a board that sets policy for a $9.1 billion charitable trust.
The recommendations are based on a study by an outside expert, San Francisco-based Mercer LLC, which found that Kamehameha Schools board spends more than twice as much time on trust matters — 2 1/2 to 3 days a week — than do the boards of comparable nonprofit organization and for-profit corporations.
"It is Mercer's opinion that this is a reasonable annual amount of compensation which takes into account the difference between the role of a typical corporate director or exempt organization trustee and that of a KS trustee," the Mercer report said.
pay hikes questioned
Others question the necessity of pay increases of 65 percent or more.
Bill Coleman, chief compensation officer at Waltham, Mass.-based Salary.com, said it's highly unusual for a board to receive such a steep pay hike unless the board was severely underpaid in previous years.
"There aren't a lot of jobs that have a pay increase of 65 percent," Coleman said.
Roy Benham, a 1941 graduate of Kamehameha Schools and a former president of the school's alumni association, said he'd rather see money for pay increases go toward the trust's main purpose: educating Hawaiian children.
Benham said he sees no reason to up the pay since the current compensation levels haven't deterred qualified people from applying for recent board openings.
"Give me a break," he said. "I can understand a cost-of-living increase, but 65 percent or more is a little bit out of hand."
The recommendations require the approval of Probate Judge Colleen Hirai.
Trust spokesman Kekoa Paulsen declined comment until the probate court makes a final ruling on the matter.
Kamehameha Schools, which was established by the 1883 will of Princess Bernice Pauahi Bishop, is a nonprofit trust that educates Hawaiian children. It is one of the nation's largest charities and is Hawai'i's largest private landowner with more than 360,000 acres.
The issue of trustee compensation played a major role in the late 1990s turmoil at Kamehameha Schools.
The Internal Revenue Service threatened to revoke the trust's tax-exempt status due in part to the $1 million a year paid to then-board members Richard "Dickie" Wong, Henry Peters, Lokelani Lindsey, Gerard Jervis and Oswald Stender.
The IRS later settled with the estate after board members resigned and the trust reformed its governance and pay policies.
The trustee compensation committee was set up in the aftermath of the controversy to cap trustee pay at "reasonable" levels.
In 2004, the committee recommended increasing the maximum pay for a trustee by more than 70 percent to as much as $180,000 for regular board members and $210,000 for the board's chair. The probate judge approved most of the increase but all five trustees agreed to turn down the raise.
The current committee — whose members include Kamehameha Schools alum Michael Rawlins, insurance executive Douglas Goto and attorney Rosanne Goo — said its recommendations are based on an analysis of board pay at multibillion-dollar foundations, publicly traded corporations, for-profit real estate investment trusts and some local publicly traded companies such as Bank of Hawaii Corp. and Alexander & Baldwin Inc.
The Mercer study did not include the pay policies of local nonprofit boards due to "lack of comparability," the committee said.
Board members of most local nonprofits receive no pay for their work.
Salary.com's Coleman believes the report might be skewed toward the higher end due to its inclusion of for-profit corporation.
He believes a more accurate study would have compared Kamehameha Schools board pay with that of large tax-exempt organizations such as the $12.3 billion in assets of the Ford Foundation and Robert Wood Johnson Foundation, which holds $9.4 billion in assets.
Board members of those foundations receive $21,500 to $46,500 a year.
Trustees pay to soar - Honolulu Advertiser
Googling...The Kamehameha Schools
July 2, 2008
Trustee Message: Petition Filed
to Find Successor Trustee
Aloha mai kaakou,
The Board of Trustees of Kamehameha Schools has filed a Petition for Appointment of Successor Trustee, which starts the process of selecting a replacement for Trustee Robert Kihune, whose term expires in one year, on June 30, 2009. A hearing of the petition has been granted by the court for August 8, 2008.
As a Trustee, Admiral Kihune has consistently kept his focus on the mission of Kamehameha Schools, always holding Ke Ali'i Pauahi’s interests paramount, being adamant about educating Hawaiian children with need. From the day he stepped forward as an Interim Trustee until today, he has stood for effective governance, inspired leadership and a bias for action to move Kamehameha Schools’ mission forward. He has consistently supported programs to expand the educational reach of Kamehameha Schools and has taken the kuleana of land stewardship very seriously. His contributions have been enormous. As he embarks on his final year as Trustee, he does so with our deepest gratitude.
Under the Will of Ke Ali`i Bernice Pauahi Bishop, the Trustees were to be selected by a majority of the members of the Supreme Court of Hawai'i. However, in 1997 three of the five current Supreme Court Justices – Chief Justice Ronald Moon and Associate Justices Paula Nakayama and Steven Levinson – gave notice that they would not be exercising the power to appoint Trustees as granted by Pauahi’s Will.
The Justices maintained that position in 2006, when a replacement was selected for then-Trustee Constance Lau. If the Justices maintain this position in 2009, the upcoming vacancy cannot be filled as Pauahi intended. In that case, the Petition for Appointment of a Successor Trustee suggests that the court follow the selection procedure established in 1999 for the selection of the current Board of Trustees.
According to that process:
1. The Probate Court appoints a Screening Committee of seven persons who are knowledgeable about Kamehameha Schools and Pauahi’s legacy and vision and experienced in the management and operation of a large institution, educational or otherwise.
2. The Screening Committee will accept applications and nominations, and may solicit applicants who have not applied.
3. The Screening Committee will select and interview 6 semi-finalists.
4. The Screening Committee will select three finalists, whose names are published in the newspaper.
5. The Screening Committee will receive comment from the community, including the Trustees and the Attorney General, for 30 days, and submit a report detailing the input to the Court.
6. The final selection will be made by the Probate Court.
Our duty as Trustees in this matter is to file the Petition for Appointment of a Successor, and then continue to do our best to fulfill Pauahi’s vision and the mission of Kamehameha Schools while the selection process is underway.
I mua, Kamehameha!
Chair, Board of Trustees
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< < < FLASHBACK < < <
September 1, 2000
Interim trustees Constance Lau
and Robert Kihune are
among the candidates
By Rick Daysog, Star-Bulletin
A special court-appointed panel today nominated seven business and community leaders as finalists for the trusteeship of the Kamehameha Schools.
The Trustee Screening Committee selected attorney Douglas Ing, former Amfac/JMB Hawaii Inc. president Chris Kanazawa, retired Adm. Robert Kihune, American Savings Bank chief operating officer Constance Lau, former Hemmeter Corp. executive Diane Plotts, Grace Pacific Corp. chairman Dwayne Steele and Hawaiian navigator Nainoa Thompson.
Kihune and Lau currently are serving as interim trustees of the $6 billion charitable trust.
The selection committee filed its list of finalists with the state Probate Court this morning. The court will name the five permanent trustees from the list but not before a 30-day period during which the public will have the opportunity to comment.
The selection process marks a milestone in the 116-year history of the Kamehameha Schools, whose most recent past has been wracked by controversy and dissension.
Previously, trustees were picked by the state Supreme Court as spelled out in the will of the estate's founder, Princess Bernice Pauahi Bishop. But the turmoil prompted the high court to step away from the selection process in December 1997.
Critics have charged that politics tainted the Supreme Court's selection of previous trustees.
The screening committee said the nominees, who were picked from a field of more than 200 applicants, represent a deep sense of commitment and have the ability to ensure that Bishop's legacy continues.
The nominees -- screened for their business experience, community involvement and leadership experience -- represent a diverse cross-section of the local community. Ing is a Kamehameha Schools graduate who represented former trustee Oswald Stender in his successful suit to remove ex-board member Lokelani Lindsey. Thompson is well known as the navigator on the Hokulea voyages across the Pacific.
Plotts served as developer Christopher Hemmeter's top executive as he built several five-star hotels during the 1980s economic boom, while Kanazawa headed Amfac during the late 1990s as the company was phasing out its agricultural operations.
Lau and Kihune have served as interim trustees of the Kamehameha Schools since May 1997, replacing ousted trustees Oswald Stender, Henry Peters, Richard "Dickie" Wong, Lokelani Lindsey and Gerard Jervis. Steele is chairman of Grace Pacific, an asphalt paving company, and is an outside director of Pauahi Management Co., a for-profit unit of the Kamehameha Schools.
Under a court-revised plan, the annual pay for permanent trustees is capped at $97,000. The chairman will receive no more than $120,000 a year.
Screening committee members include Hawaiian educator Nona Beamer, business executive Kenneth Brown, attorney Melody MacKenzie, Kamehameha Schools alum Mike Rawlins, the estate's court-appointed master Colbert Matsumoto, Hawaii Community Foundation head Kelvin Taketa and Roy Benham, president of the Oahu region of the Kamehameha Alumni Association.
Bishop Estate archive
May 17, 2008
Kamehameha ups pay
By Rick Daysog, Advertiser Staff Writer
In a year it hit several educational and financial milestones, Kamehameha Schools rewarded Chief Executive Officer Dee Jay Mailer with a $17,437 pay increase.
In its annual tax filings with the Internal Revenue Service, Kamehameha Schools said it paid Mailer $591,677 in salary, benefits and other compensation during the fiscal year ending June 30, 2007.
That pay package was up from Mailer's year-earlier compensation of $574,230.
The $9.1 billion trust's highest compensated executive was Kirk Belsby, vice president of endowment. He received $689,560 last year, which was up nearly 3.9 percent from his 2006 compensation of $663,724.
Mailer's and Belsby's compensation were on the high end of what large Hawai'i foundations and trusts pay their top executives. But it was well below the $820,000 average that the state's largest healthcare nonprofits pay their CEOs.
Kamehameha Schools spokesman Kekoa Paulsen said the trust's compensation policies are performance based and reflect the credentials and qualifications of its executives.
The estate's endowment grew by a record $1.4 billion in its 2007 fiscal year, paving the way for future expansion of its educational programs.
Founded by the 1884 will of Princess Bernice Pauahi Bishop, Kamehameha Schools educates children of Hawaiian ancestry.
The trust, the state's largest private landowners and one of the nation's wealthiest charitable trusts, spent a record $250 million on its educational programs last year and reached 35,000 Native Hawaiian students and families last year.
Kamehameha Schools said it expects to spend another $270 million to $277 million this year. And under a longer-term plan, Kamehameha Schools aims to increase the number of students it serves to 55,000 by the year 2018.
According to its tax filing, two dozen Kamehameha Schools employees and trustees received more than $100,000 in compensation last year.
Two former trustees — Henry Peters and Matsuo Takabuki — also receive six-figures payments through a decades-old deferred compensation [plan] that was discontinued in the early 1990s.
Peters, who resigned in 1999 after the IRS threatened to revoke the school's tax-exempt status, took home $488,619 in deferred pay last year while Takabuki, who retired in 1993, received $307,806 in deferred pay.
A deferred compensation plan is a tax-savings strategy that allows an executive to postpone the payment of part of his or her annual compensation until a later date, when the executive is in a lower tax bracket.
Among its officers and managers, Kamehameha Schools said it paid Vice President of Strategic Planning Christopher Pating $422,088, Financial Assets Director Elizabeth Hokada $325,864 and Commercial Assets Director Paul Quintiliani $302,111.
Special Projects Director Susan Todani earned $231,756 last year while Michael Chun, headmaster of the Kapalama campus, received $237,888.
Kamehameha's board members Douglas Ing, Nainoa Thompson, Diane Plotts and retired Adm. Robert Kihune earned between $97,500 and $113,500 each last year while Constance Lau, who stepped down from the board during the 2007 fiscal year after she became Hawaiian Electric Industries Inc.'s CEO, received $73,500.
Her replacement, First Hawaiian Bank executive Corbett Kalama, earned $27,000. Trustee's pay is set by the state Probate Court.
Others executives listed in the tax filing included:
Neil Hannahs, director of the trust's land assets division, who earned $204,510.
Human Resources Director Richard Lau, who earned $221,109.
Ann Botticelli, the trust's vice president of community relations and communications, who made $182,293 in pay and benefits.
Colleen Wong, vice president of legal services, who earned $257,350.
The Honolulu Advertiser
April 24, 2008
$2 million returned
School points to breach in terms of
confidential settlement paid in 2007
By Jim Dooley, Advertiser Staff Writer
Kamehameha Schools is trying to get back as much as $2 million of the $7 million it paid last year to settle a lawsuit that challenged its admissions policy favoring Hawaiian students, according to legal papers filed in federal court in California.
The papers are contained in new litigation filed after publication of an Advertiser news story in February that revealed that the settlement was $7 million.
The money was paid to a Big Island mother and child in return for their agreement to drop the lawsuit just before the U.S. Supreme Court was to decide whether it would hear an appeal of the case.
The plaintiffs, who have never been publicly identified and are known as Jane and John Doe, alleged in the California case that the schools "threatened" to publicly identify them if they did not place $2 million in an escrow account for possible return to the schools because terms of the confidential settlement had been revealed.
Ken Kuniyuki, a Hawai'i lawyer who now represents the pair, is alleging that David Schulmeister, an attorney for the schools, said that if the schools were forced to file suit over the issue, the names of the Does would become public.
Kuniyuki made the allegation in a sworn declaration filed this month in federal court in Sacramento, seeking a court order barring public identification of the plaintiffs.
Schools attorney Paul Alston denied that Schulmeister threatened to reveal the plaintiff's identities.
"Schulmeister told Kuniyuki that the (Kamehameha Schools/ Bishop Estate) believed the settlement agreement had been breached and that the estate was entitled to damages," Alston said in court papers filed April 14 in Sacramento.
"He further explained that a public lawsuit could make it difficult for the Does' anonymity to be preserved" and suggested that the $2 million be held in escrow while the parties discussed resolution of the dispute short of a lawsuit, according to Alston.
Alston stressed on Tuesday that Kamehameha Schools has not filed a lawsuit or taken any action that would publicly identify the Does.
"Kamehameha Schools is closely scrutinizing how to proceed," he said.
Tuesday night and yesterday, the Kamehameha Schools board of trustees and Chief Executive Dee Jay Mailer sent a mass e-mail to parents and alumni notifying them of the new legal skirmishing in California and alerting them that The Advertiser was preparing a story on the subject.
"A breach of confidentiality has occurred, and an investigation into the line of responsibility is in process. Legal action as appropriate shall follow," the trustees' e-mail said.
"It is aggravating to be drawn into this complicated and unsavory infighting," the trustees' message continued. "However, we will not allow this latest legal maneuver to distract us from our mission."
'Fear for our safety'
Jane and John Doe filed legal papers in Sacramento federal court denying any role in the release of the settlement figure by John Goemans, an attorney who used to represent them but who now is involved in a dispute over compensation for his services in the case.
Their attorney, Kuniyuki, also asked the federal court to issue a restraining order against all parties in the case preventing any attempts to disclose the identities of Jane and John Doe.
He attached an April 2 sworn statement from Jane Doe that said, "both John Doe and I fear for our safety if our identities are made public."
She noted that more than 1,550 reader comments were posted on the Advertiser's Web site following the February story that disclosed the settlement amount.
"Many of them are extremely critical of us. Some include threats of violence against us," she said.
"I have lived in Hawai'i for many years. The negative comments and threats posted to the Honolulu Advertiser's February 8, 2008 article are entirely consistent with my experience with many local residents regarding the admissions policy of the Kamehameha Schools."
If their identities become public, she said, "we are prepared to move and go into hiding."
Last week, following a hearing before U.S. District Judge Frank Damrell Jr., all parties in the federal court case stipulated that they would not disclose the true identities of the Does.
Goemans told The Advertiser in February that he believed the settlement amount should be a matter of public record, given Kamehameha Schools' status as the wealthiest and most influential nonprofit institution in Hawai'i.
In a separate civil case now pending in Sacramento state court, Goemans was sentenced earlier this month to serve eight days in jail and fined $4,000 for violating a court order to keep the settlement amount secret.
Goemans, 73, now living in Florida with his sister, said by telephone, "I have zero money, I have serious health issues, and now I've been ordered to serve an eight-day jail sentence in California in the middle of May. I don't know what's going to happen."
The California state case was filed against Goemans by Eric Grant, a Sacramento attorney who litigated the Does' lawsuit from the time it was first filed in Hawai'i in 2003 through its settlement in May 2007.
Under the terms of the settlement agreement, Grant was entitled to 40 percent of the $7 million total, or $2.8 million.
He sued Goemans in Superior Court in Sacramento last year to try to settle the outstanding question of how much Goemans should be compensated.
Goemans conceived the civil rights lawsuit against the schools, found the plaintiffs on the Big Island and brought them together with Grant.
Goemans said the only money he has received was a $20,000 loan from Jane Doe but believes he is entitled to as much as 25 percent of the total settlement, or $1.75 million.
According to documents filed in the California state case, Grant became concerned early this year that Goemans intended to reveal the amount of the legal settlement and on Feb. 5 obtained a court order against Goemans blocking any such disclosures.
Three days later, The Advertiser published a news story based on Goemans' statements about the settlement amount.
Goemans said in a sworn statement filed with the California court March 17 that he is "not medically or mentally 100 percent" and had no memory of being informed of the Feb. 5 court order.
"I want to emphasize to the court that it was not my intent to deliberately and knowingly violate the court's order," the statement said.
But he reiterated his belief that Kamehameha Schools, as a tax-exempt organization, should not and cannot keep the terms of the settlement confidential.
After the settlement terms were made public, Grant filed a new federal lawsuit March 28 in Sacramento against Kamehameha Schools and his own clients, Jane and John Doe, asking the court for a ruling that he was not responsible for the disclosure and has no financial liability because of it.
Grant and an attorney who represents him did not return telephone requests for comment.
Alston filed a lengthy legal memo in the case last week questioning the Sacramento court's jurisdiction in the matter since the Does and the schools are in Hawai'i.
Reach Jim Dooley at email@example.com.
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441 F.3d 1029
John DOE, a minor, by his mother and next friend, Jane DOE nfr Jane
Doe, Plaintiff-Appellant, and
Josephine Helelani Pauahi Rabago, Intervenor,
KAMEHAMEHA SCHOOLS/BERNICE PAUAHI BISHOP ESTATE; Constance Lau, in her capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; Nainoa Thompson, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; Diane J. Plotts, in her capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; Robert K.U. Kihune, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; J. Douglas Ing, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate, Defendants-Appellees.
United States Court of Appeals, Ninth Circuit.
February 22, 2006.
John W. Goemans, Esq., Kamuela, HI, Eric Grant, Esq., Attorney at Law, Sacramento, CA, for Plaintiff-Appellant.
Emmett B. Lewis, Miller & Chevalier, Chartered Metropolitan Square, Washington, DC, David Schulmeister, Esq., Cades, Schutte, Fleming and Wright, Honolulu, HI, Kathleen M. Sullivan, Stanford Law School, Stanford, CA, Jay L. Carlson, Esq., Crystal K. Rose, Esq., Bays, Deaver, Hiatt, Lung & Rose, Honolulu, HI, for Defendants-Appellees.
Before MARY M. SCHROEDER, Chief Judge.
Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.
Notes: Judge Clifton is recused
Kamehameha Schools and Nature Conservancy
Team Up to Protect Lumaha‘i Valley on Kauai
Honolulu -- The Nature Conservancy has signed an agreement with Kamehameha Schools to manage the native forest in the back of Lumaha‘i Valley on the north shore of Kaua‘i. Kamehameha Schools owns the property, which contains some of the best remaining native lowland forest in the state.
“This agreement is our first with Kamehameha Schools, and it’s one that we highly value,” said Suzanne Case, the Conservancy’s Executive Director in Hawaii. “Lumaha‘i Valley is incredibly beautiful and worthy of serious conservation efforts. Our shared goal is to ensure the long-term survival of this natural and cultural treasure.”
“Preservation of Hawaii’s native environment is critical to the understanding and perpetuation of Hawaiian culture,” said Neil Hannahs, Director of the Land Assets Division at Kamehameha Schools. “At Lumaha‘i, we have a chance to demonstrate how conservation and culture overlap.”
Lumaha‘i is one of the large windward valleys on the island of Kaua`i, extending far into the island’s undeveloped central region, the Alaka’i plateau. The valley’s terminus above 1,300 feet elevation represents some of the most well preserved native lowland wet forest in Hawai‘i. ‘Öhi‘a and dozens of other species of native trees cover the valley walls, while mämaki and other native shrubs and ferns clothe the stream banks.
According to Sam Gon III, Director of Science for the Conservancy, Hawai‘i has already lost more than half of its original native lowland forest, defined as forest below 3,000 feet. “The back portion of Lumaha‘i is as close to pristine as any lowland forest and stream system can get in the Hawaiian Islands,” he said. “There are very few places remaining where you can stand at low elevation in a river valley bottom and see native forest running from river edge to ridge top. This is Lumaha‘i. Its conservation value is immense.”
But the need to bring protective management to the site is great. Invasions of aggressive lowland weeds such as Australian tree fern, clidemia and strawberry guava coupled with the upward movement of goats and pigs from the lower valley threaten what is currently a gem of biological diversity.
“The back of the valley is in many places nearly 100% native forest and shrubland,” said Kalani Fronda, Asset Manager for the Land Assets Division at Kamehameha Schools. “Habitat modification is only in its early stages, but the time to stop it is now.”
“The current scope and severity of damage from pigs and goats is fairly limited,” said Trae Menard, the Conservancy’s Natural Resource Manager on Kaua‘i. “However, based on experience in other forests statewide, the number of feral animals will likely increase to damaging levels quickly if we don’t act now.”
Initial management efforts will focus on controlling priority weeds. In the future, management efforts will likely include the use of community volunteer hunters to reduce pig and goat populations, and the placement of a fence to protect the most remote and undisturbed management areas in the upper portion of the valley.
February 8, 2008
Kamehameha Schools settled
lawsuit for $7M
By Jim Dooley, Advertiser Staff Writer
Kamehameha Schools paid $7 million to settle a lawsuit filed by an anonymous student who claimed the schools' Hawaiians-first admissions policy violates civil rights laws, according to an attorney involved in the case.
Terms of the confidential settlement have been a closely guarded secret since it was signed in May just before the U.S. Supreme Court was to decide whether to hear the case.
The settlement ended a four-year effort by a non-Hawaiian teenager, known only as John Doe, to enter the Kamehameha Schools system.
Attorney John Goemans — who planned the legal action, found the plaintiff and brought the case to Sacramento private attorney Eric Grant to litigate — revealed the amount of the settlement in an exclusive interview with The Advertiser.
"The amount of the settlement is important public information that should be disclosed by a charitable institution that receives tax-exempt status from the Internal Revenue Service," Goemans said in a telephone interview.
The lawsuit challenging the schools' admissions policy was the first case of its kind to reach the doors of the U.S. Supreme Court and stirred enormous controversy in Hawai'i.
Critics of the settlement pointed out that additional legal challenges could still be mounted against the admissions policy, and news of the $7 million that the schools paid could increase the chances of new lawsuits.
Local attorney David Rosen, who made news last year by actively seeking plaintiffs for a new challenge to the admissions policy, said yesterday he is preparing a suit against Kamehameha Schools.
Kamehameha Schools, previously known as Bishop Estate, is a nonprofit organization with assets of $7.7 billion.
Grant, appearing yesterday at a University of Hawai'i law school symposium on the lawsuit, known as John Doe vs. Kamehameha Schools, declined to discuss the settlement when told that Goemans had disclosed the $7 million figure.
Kamehameha Schools' lead attorney in the lawsuit, Kathleen Sullivan, a former dean of the Stanford University law school, also declined comment.
"Terms of the settlement are inviolate," said Sullivan, also a participant at the UH symposium yesterday.
Ann Botticelli, spokeswoman for the Kamehameha Schools board of trustees, also declined to comment on Goemans' statements or the size of the settlement.
The settlement says that anyone who discloses its contents is subject to a $2 million penalty, but Goemans said he was not a party to the agreement and never signed it.
Goemans, who is recovering from heart surgery, said yesterday that he was opposed to the $7 million settlement but that "it was the client's decision" to accept it.
PART OF TAX RECORD
Goemans said an attorney representing Grant breached the confidentiality clause by mailing a copy of the agreement to Goemans last year.
Goemans added that Kamehameha Schools must disclose details of the settlement on its 2007 tax return, which is due to be filed later this year, and on annual financial reports the charity is required to file with the state attorney general's office and with the state court.
Tax returns of nonprofit institutions such as Kamehameha Schools are public records under federal law. The institution's annual financial accountings — which date to its founding by Princess Bernice Pauahi Bishop in 1888 — are also open to the public.
Kamehameha operates three campuses — its flagship at Kapalama Heights on O'ahu, one on Maui and another on the Big Island — for the benefit of children of Hawaiian ancestry.
The institution plays a central role in Hawai'i society, in part because of its financial clout and in part because of its mission to educate children of Hawaiian ancestry. It is also the state's largest private landowner.
There are about 70,000 school-age children with Hawaiian blood, and 5,400 students were enrolled at Kamehameha's various schools last year. Kamehameha served 30,000 other children and adults through outreach programs and through its support of charter schools.
TO SUPREME COURT
Hawai'i federal Judge Alan Kay initially dismissed the John Doe lawsuit in November 2003, upholding the schools' argument that the admissions policy helped address cultural and socio-economic disadvantages that have beset many Hawaiians since the 1893 overthrow of the Hawaiian monarchy.
The plaintiffs appealed that decision to the 9th U.S. Circuit Court of Appeals, which overturned it in a three-judge decision in 2005. That ruling prompted protest rallies, prayer vigils and other gatherings around the state in support of the schools.
Lawyers for Kamehameha Schools then asked that all members of the appellate court review the matter and the full court reversed the three-judge panel's decision by an 8-7 vote in December 2006.
Grant then petitioned the U.S. Supreme Court to hear the case, and last May, on the eve of the high court announcement on whether it would take the case, the matter was settled out of court.
"We didn't think that there was a strong possibility (of losing) but that risk is always out there," J. Douglas Ing, chairman of the Kamehameha board of trustees, said in announcing the settlement in 2007. "There are no guarantees and there certainly were no guarantees from our lawyers that we would win the case."
Grant, the attorney for John Doe, said after the case was settled, "Obviously, a settlement is not exactly what either side wanted. But it is something both sides eventually came to terms on."
SPATS OVER FEES
Goemans is involved in a continuing dispute with John Doe, whose identity has never been revealed, and with Grant over how much money Goemans should receive for his part in the case.
Grant received 40 percent of the overall settlement — $2.8 million — although he had to sue the plaintiff and the plaintiff's mother in federal court in Sacramento last year to collect the money, according to Goemans and federal court records.
That collection lawsuit was filed in June after Kamehameha had paid the $7 million settlement. The dispute over the payment of Grant's fee was settled and dismissed in September.
Goemans said he asked John Doe and Jane Doe for 25 percent of the total settlement — $1.75 million — but has not yet received a response.
Grant filed a separate lawsuit against Goemans in California state court last year regarding how much compensation Goemans is owed for his part in the case.
That suit is still pending, although Goemans said he believes it is groundless and will be dismissed.
Grant yesterday declined comment on the collection lawsuit he filed in Sacramento against his own clients or the related action he filed against Goemans.
Goemans said he has received $20,000 in compensation to date from John Doe and his mother and is contemplating filing a new legal action of his own against them.
February 9, 2008
School's $7M deal
raises ire, eyebrows
By Jim Dooley, Advertiser Staff Writer
Yesterday's disclosure of the $7 million payment made by Kamehameha Schools to settle a civil rights lawsuit prompted questions and anger from individuals on both sides of the schools' controversial admissions policy that gives preference to students of Native Hawaiian ancestry.
"It does seem like a lot of money. It sure would be if it was in my pocket," said University of Hawai'i law school professor Jon Van Dyke, who served as a legal consultant to Kamehameha in the lawsuit.
Van Dyke said yesterday he wasn't part of the settlement discussions and still believes the payment led to the right outcome for the school.
The settlement was signed in May just before the U.S. Supreme Court was scheduled to announce whether it would hear an appeal of the case. Terms of the settlement had been kept confidential until this week. John Goemans, an attorney for the plaintiff in the case, revealed the $7 million figure to The Advertiser.
The settlement meant that an earlier 8-7 vote by the 9th U.S. Circuit Court of Appeals in favor of Kamehameha's admissions policy is still the prevailing law.
H. William Burgess, a local attorney who filed legal papers with the U.S. Supreme Court supporting the plaintiff in the case, said yesterday, "Wow. The settlement was much larger than I thought."
Burgess said he still believes the case should have been heard by the Supreme Court so that legal questions surrounding the school's Hawaiians-first admissions policy were settled.
"I actually think the trustees of the Kamehameha Schools have a legal duty, when there's a legitimate legal question about what they're doing, to seek a resolution of the issue," Burgess said.
News of the $7 million payment provoked more than 500 online postings to The Advertiser that variously criticized school officials who approved the payment and the lawyers and the client who received the money.
Beatrice "Beadie" Dawson, a native Hawaiian attorney who is active in Kamehameha Schools affairs, said yesterday the settlement itself and now news of the $7 million amount "are like an open invitation for more lawsuits."
"I was very dismayed by news of the settlement last year and I was very surprised by the size of it today," Dawson said.
Hawai'i attorney David Rosen, who last year announced plans to file another legal challenge to the school's admission policy, confirmed this week that the lawsuit is taking shape but has not been filed.
He issued a news release yesterday reacting to the settlement amount that said, "The people of Hawai'i should be outraged that the trustees of Kamehameha Schools place a higher value on discriminating rather than educating."
Goemans, the lawyer who publicly revealed the $7 million figure, said he believes the settlement should be a matter of public record given Kamehameha Schools' status as a tax-exempt charitable institution.
Goemans helped bring the civil rights lawsuit against Kamehameha in 2003 on behalf of a non-Hawaiian student denied admission to the high school. The student and the student's mother, who live on the Big Island, have never been identified except as John Doe and Jane Doe.
Goemans also said the settlement is subject to review by the Internal Revenue Service and by the state attorney general's office, which oversees Kamehameha Schools' annual financial accountings filed with state Probate Court.
Attorney General Mark Bennett could not be reached for comment yesterday.
David Fairbanks, a Honolulu lawyer serving as the appointed "master" who must review Kamehameha's financial fillings for the Probate Court, did not respond to a telephone message for comment yesterday.
February 9, 2008
An attorney involved in a challenge to Kamehameha Schools' Hawaiians-only policy reveals the amount of a settlement
By Ken Kobayashi, Honolulu Star-Bulletin
Kamehameha Schools made the first move to settle a legal challenge to their admissions policy giving preference to native Hawaiians and later agreed to pay $7 million, a lawyer involved in the case said yesterday.
John Goemans, an attorney for an unnamed non-native Hawaiian student who filed a lawsuit contesting the policy, said the charitable trust offered for the first time to talk about an out-of-court settlement last May, just days before the U.S. Supreme Court was to decide whether to hear the case.
Goemans, a former Big Island attorney recuperating in Florida from heart surgery, and Sacramento, Calif., lawyer Eric Grant, the lead attorney, represented the unnamed student and his mother.
"They (the schools) approached Eric and said we wanted to settle and we have to settle by Friday morning," when it was believed the high court was to make a decision about accepting the case, Goemans said.
He said it appeared the high court would accept their appeal of an 8-7 decision by the 9th U.S. Circuit Court of Appeals that upheld the policy.
"They (the schools) were worried about losing in the Supreme Court," Goemans said.
Goemans said he did not know how Grant and the Kamehameha Schools arrived at the $7 million figure.
The hotly disputed federal civil rights lawsuit caused a firestorm of controversy among Kamehameha Schools supporters who believed the challenge struck at the more than century-old admissions policy and the heart of the charitable trust's mission to educate children of Hawaiian ancestry.
The confidential settlement was announced on May 14. Those connected with the case repeatedly refused to disclose the terms.
Goemans said he was disclosing the amount because he said he recently learned from Internal Revenue Service officials that Kamehameha Schools, a tax-exempt charitable trust, cannot keep the figure confidential.
"Because exempt organizations operate in the public good, you got to report all your expenses with particularity, and you cannot keep information relative to those expenses confidential," he said. "It's in the public interest to have full disclosure."
Ann Botticelli, Kamehameha Schools spokeswoman, said yesterday the settlement contained a confidentiality clause.
"We intend to honor the terms, and we will not be discussing the settlement or John Goemans' assertions," she said.
Grant said yesterday he had no comment.
Kamehameha Schools, a multibillion-dollar charitable trust and the state's largest private landowner, was established under the 1883 will of Princess Bernice Pauahi Bishop. It educates more than 6,700 students at its flagship campus at Kapalama Heights, two other campuses on Maui and the Big Island, and 31 preschools throughout the state.
Senior U.S. District Judge Alan Kay upheld the school's Hawaiians-first policy, but a panel of the appeals court in San Francisco ruled 2-1 that the practice violated federal civil rights laws. That decision triggered statewide protests and marches by school supporters.
Later, a larger appeals court panel voted 8-7 to uphold the policy.
It was an appeal by Grant of that 8-7 ruling that was on the doorsteps of the U.S. Supreme Court when the settlement was announced.
At the time, school officials indicated that the settlement calling for the dismissal of the lawsuit leaves intact the appeals court's 8-7 decision upholding the admissions policy.
But the dismissal does not guarantee that another lawsuit might surface and make its way to the high court, although it would first have to go through the federal trial and appeals courts, where the 8-7 ruling would be considered to be binding on the issue. But even if those who file the new lawsuit lose on those two levels, they could still ask the high court to review the case.
Honolulu attorney David Rosen said he has plaintiffs for a lawsuit to challenge the admissions policy. He said the settlement does not affect his case. Rosen said he expects the suit will be filed this year.
Goemans said Grant received 40 percent, or $2.8 million of the $7 million. Goemans said he is preparing to file his own lawsuit seeking to recover a "reasonable percentage" of the $7 million for his work in the case.
Goemans said he found the unnamed student and arranged for Grant to be the attorney for the student and his mother.
"I put the whole thing together," Goemans said. "But for me there would not have been a $7 million payment."
The student never was admitted to Kamehameha Schools because his case was pending. He has since graduated from high school and had been attending college, Grant said last year.
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February 9, 2008
Amount of settlement
raises critical concern
By Robert Shikina, firstname.lastname@example.org
Supporters and critics expressed surprise yesterday at the $7 million Kamehameha Schools paid a student to settle a lawsuit disputing its Hawaiians-first admission policy.
One Kamehameha Schools alumnus says disclosure of the settlement with the anonymous, non-Hawaiian student will prompt questions among Hawaiians.
"I'm not happy with $7 million," said Kamehameha Schools alumnus Jan E. Hanohano Dill. "Unfortunately, that's a lot of money, and it's going to create a lot of questions in the Hawaiian community whether it was right or wrong and to continue."
Dill, also a board member of Na Pua a Ke Ali'i Pauahi, a nonprofit group whose members include students, parents, and alumni of Kamehameha Schools, said he continues to support the school's decision.
"I don't know the details, and I think that's something that has to be cleared," he said. "You settle because you want to avoid costs that would be incurred as you go forward."
He added, "I have to believe that they understood that this was something good for the Hawaiian people. ... It will be clear as things unfold whether that was true."
Dill, who is also president of the nonprofit Partners in Development Foundation, said the admissions policy must eventually be addressed and that the settlement avoids this case but does not stop other cases.
Marion Joy, former vice president of Na Pua, called the settlement a "misuse of trust funds."
"The trust is continually going to be challenged," she said. "This is not going to be the last. ... As far as settling for the particular lawsuit, it's not in the best interests of the beneficiaries (of the 1883 will of Princess Bernice Pauahi Bishop)."
Kamehameha Schools declined comment.
Honolulu attorney David Rosen, who has sought potential clients to sue Kamehameha over its admissions policy after the settlement, sent out a statement yesterday that said the $7 million settlement was used to "buy off this case."
He added that the trustees should open a campus on the Leeward Coast of Oahu and possibly Molokai where increased educational opportunities are needed.
H. William Burgess, a retired attorney and founder of Aloha for All, a group opposed to Hawaiian sovereignty, said the settlement raises questions about the proper use of the trust funds.
"Normally, trustees, if they're doubtful about doing something, they ask the court to give them instructions," he said. "Yet in this case, the biggest charitable trust, probably in the nation, instead of welcoming the opportunity to get the highest court in the land to settle it, they pay $7 million to leave it open. And it is very much open."
* * *
The Wise Old Owl asks: How much of the settlement came from Kamehameha’s insurance companies, and how much came from the trust funds? Who is their insurance company? Their insurance broker? Who actually signed the Settlement Agreement?
* * *
August 15, 2007
Improving Judicial Accountability
in Hawaii's Highest Court
By Randall Roth, The Hawaii Reporter
This is a summary of Randy Roth’s Comments to AJS Committee on Judicial Independence and Accountability (March 13, 2007)
Something is wrong with the system of judicial accountability when serious questions can be raised about the conduct of a state’s entire Supreme Court without an official body either coming to the defense of those justices or taking steps to hold those justices accountable.
Given the seriousness and specificity of the allegations in the Broken Trust essay and book, one would expect some kind of response. Thus far, the silence has been deafening:
• Commission on Judicial Conduct
• Judicial Selection Commission
• The Judiciary—Rule 19 Judicial Evaluations
• Hawaii State Bar Association
• American Judicature Society—Hawaii Chapter
• AJS Committee on Judicial Independence and Accountability
Nearly 10 years have passed since publication of the Broken Trust essay. Why has none of these organizations done anything? Are they assuming that the allegations have no merit? Or, are they assuming the existence of meritorious explanations for what appears to be unethical behavior? Why assume anything?
Why has “everyone” stuck his, her, or its head in the sand over a matter of such monumental importance? Doesn’t the deafening silence and lack of action indicate to you that something is wrong with the system of judicial accountability in Hawaii?
My goal is not to see anyone embarrassed or treated unfairly. If too much time has passed for there to be individual accountability, so be it. That’s one question.
A completely separate question is the one that has me here today: Did the judicial accountability system work or not work properly in the days, months and years following the publication of the Broken Trust essay? What about over the past year in response to new revelations in the Broken Trust book?
If this body does not attempt to answer such questions, who will? As corny as it sounds: If not you, who? If not now, when?
My perception is that the system did not work. My further perception is that the individuals running the various organizations are in denial.
If this body were serious about its assigned task, step one would be to acknowledge that the judicial accountability system failed in this instance. Step two would be to acknowledge that it failed intentionally. The people and issues involved here are simply too important for the total absence of accountability to have been inadvertent.
How can this body expect to deal with its task responsibly—and credibly—if it does not first acknowledge such obvious facts?
I apologize if my words offend anyone. According to Kate, you invited me here today to tell you what I think you should do. So that’s what I’m doing.
I also have some specific suggestions, but I don’t want to waste your time—or mine— going over them if you are not ready to acknowledge that the system failed miserably in this instance, and that the failure was not inadvertent.
Here are some specific suggestions that I hope the committee will consider along with the suggestions of others:
Analyze what went wrong, and explain it to the public.
Abolish the Judicial Selection Commission.
Although originally touted as a way to de-politicize judicial selection, the JSC simply moved the politics to behind a closed door. Limiting the governor to names on a short list that the JSC develops in secret makes it difficult, if not impossible, to hold anyone accountable for a bad selection decision. Similarly, because judicial evaluations are not made public and the JSC makes all retention decisions in secret, it is virtually impossible to hold the JSC accountable for its retention decisions.
Hawaii should put the process of appointing and re-appointing judges back into the hands of the governor. If the governor wants to appoint a panel to produce a short list of candidates, that would be fine. Either way, the governor should be expected to explain publicly the reasons for each appointment and re-appointment decision. All such decisions should be subject to Senate confirmation.
If the Senate or the public perceives an appointment to be other than merit-based, the governor would not have the excuse of having been limited to someone else’s short list. These proposed changes would increase significantly the current low levels of transparency and accountability, and for that reason alone would tend to increase public confidence in the judiciary (i.e., even if the quality of the judiciary were to remain the same).
Abolish the Commission on Judicial Conduct.
The Commission on Judicial Conduct is supposed to hold accountable the justices who select the members of the Commission, and the Commission operates totally in secret. These attributes do not instill confidence and trust in the judiciary. To the contrary, they promote distrust and cynicism. An independent party who operates more openly could better accomplish the Commission’s work. (See below)
Create an Office of the Inspector General.
This person would be appointed by the governor and confirmed by the Senate. He or she would have investigatory but not enforcement powers, and would render written advisory decisions on matters of alleged or apparent improper behavior by judges. The governor would be expected to address the substance of any such decision when announcing a decision to re-appoint, or not to re-appoint, a judge whose behavior had been considered by the inspector general. In the event of serious misconduct, a judge could, and presumably would, be removed from office by majority vote of the Senate. In addition to taking over the work of the Commission on Judicial Conduct, the inspector general could administer the judicial evaluation process. (See below)
Revise the Judicial Evaluation Program.
To increase the level of confidence and trust in the judiciary, a party other than the judiciary should administer the judicial evaluation program. The inspector general could oversee the program and share detailed results with a small committee of judges whose function would be to help individual judges use that feedback as a tool for improvement. Each year the inspector general would provide to the public a bottom-line evaluation of each judge (e.g., satisfactory or unsatisfactory). This bottom-line public evaluation would begin only after an appropriate grace period of at least several years to give a new judge an opportunity to grow into the job.
Of course good people are the most important ingredient in achieving judicial independence and accountability. They will generally find a way to make even a flawed system work reasonably well. Unfortunately, the converse is equally true: bad people will usually find a way to manipulate to some degree even the best of systems. That reality should be kept in mind.
What I have proposed would not be perfect. The important question is whether these changes would be a significant improvement over the current system. As I stated earlier, I believe the current system of judicial accountability is not working.
These proposals would increase significantly the current levels of transparency and accountability in the judiciary. Transparency and accountability are critically important in establishing and maintaining confidence and trust in the system of justice, in my opinion.
Thank you for this opportunity to share these thoughts with you.
Randall Roth is an attorney, professor at the University of Hawaii School of Law, and co-author of "Broken Trust: Greed, Mismanagement & Political Manipulation at America’s Largest Charitable Trust"
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For more, GO TO > > > Broken Trust: The Book
May 16, 2007
Deferred money to ex-trustees 'pretty big'
By Rick Daysog, Advertiser Staff Writer
Newly released filings with the Internal Revenue Service show former Kamehameha Schools trustee Henry Peters received $428,835 in deferred pay last year.
The filings, which cover the year ending June 30, 2006, also show that former trustees Matsuo Takabuki earned $270,135 in deferred compensation last year, while former state Supreme Court Chief Justice William Richardson received $47,696.
The filings for the first time give details about the compensation for former board members of the $7 billion charitable trust.
A deferred compensation plan is a tax-savings strategy that allows an executive to postpone the payment of part of his or her annual compensation until a later date, when the executive is in a lower tax bracket.
Kamehameha Schools offered a deferred compensation plan for key employees and trustees from the mid-1970s until the early 1990s.
Contacted at home yesterday, Peters said his deferred compensation is part of a retirement plan that he set up to provide for his family.
Peters said his past trustee pay was performance-based and was determined under a state law that at the time allowed trustees of charitable organizations to receive up to 2 percent of the organization's annual income.
He added that many of the estate's court-appointed masters have found the compensation was appropriate in their annual reviews of the estate's finances.
"We didn't have any retirement, a health plan or any other kind of those amenities. We just have those commissions and from those commissions, it was our responsibility to provide for our own future," Peters said. "Our compensation was performance-based. It was based on results."
Takabuki, who retired in 1993, and Richardson, who retired as trustee in 1992, could not be reached for immediate comment. When these three served as trustees, the charity was known as Bishop Estate.
APPROACHES CEO'S PAY
Peters' deferred compensation is about four times the amount paid to each of the current Kamehameha Schools trustees last year. It's also about three-quarters of the $574,230 that the charitable trust's Chief Executive Officer Dee Jay Mailer earned in 2006.
"That is a pretty big number," said Linda Lampkin, research director at ERI Economic Research Institute in Washington, D.C., and an executive pay expert specializing in the nonprofit sector.
Peters received the money from an individual deferred compensation plan he set up with trustee pay that he received in the 1980s and 1990s.
Before his resignation in 1999, Peters earned as much as $1 million a year as a trustee.
Peters, 66, is a former state House speaker. He served as a Kamehameha Schools trustee from 1984 until 1999 when he resigned along with fellow trustees Richard "Dickie" Wong, Lokelani Lindsey, Gerard Jervis and Oswald Stender.
The resignations came after the Internal Revenue Service threatened to revoke the charitable trust's tax-exempt status.
Kamehameha Schools spokeswoman Ann Botticelli had no comment on Peters' deferred pay.
When he resigned from the trust, Peters' deferred pay was criticized by the state attorney general's office. The AG's office — which had been seeking multi-million dollar fines against Peters and his fellow trustees — argued that Peters' deferred compensation was based on excessive pay that he received while he was trustee.
Deputy Attorney General Hugh Jones would not comment yesterday.
The estate's tax filings also show that Mailer's 2006 pay of $574,230 was up nearly $100,000, or about 21 percent, from her 2005 compensation of $474,240.
But even with the pay hike, Mailer was the estate's second-highest paid executive behind the trust's vice president of endowment, Kirk Belsby, who received $663,724 in total compensation last year.
Both Mailer and Belsby earned less than the $2.6 million average pay that the CEOs of Hawai'i's largest publicly traded companies received last year. But the salaries of the trust executives were in the general range of what top executives of the nation's largest nonprofits receive.
Lampkin, the Washington, D.C., executive pay expert, said the average annual compensation for top executives of charitable foundations with assets of $100 million or more was about $637,000 last year.
For large nonprofits including hospitals and universities with assets of $1 billion to $10 billion, the pay ranges between $513,000 a year and $1 million a year, Lampkin said.
HOW MUCH OTHERS MADE
Kamehameha Schools' tax filing for its 2006 fiscal year also listed the pay for several of its top executives, including:
Christopher Pating, vice president of strategic planning, who earned $461,415 last year;
Elizabeth Hokada, director of financial assets, who received $316,953;
Michael Loo, vice president of finance and administration, who was paid $299,630;
Vice President of Legal Services Colleen Wong, who earned $248,285;
Michael Chun, headmaster of Kamehameha Schools' Kapalama campus, who received $230,035;
Former state Budget Director Yukio Takemoto, who recently retired as the estate's director of facilities development, received $208,471 last year.
Founded by the 1884 will of Princess Bernice Pauahi Bishop, the Kamehameha Schools is a tax-exempt organization that educates children of Hawaiian ancestry. The estate is one of the nation's largest charities and is Hawai'i's largest private landowner with 365,000 acres.
EDUCATION SPENDING UP
The estate's 2006 tax filings also showed that the estate increased spending for its educational programs to 220 million, which included $197 million on campus and outreach programs.
Those expenditures included $11 million in financial aid for preschool to 12th-grade students, and another $12.7 million in post-high school financial aid.
The trust also spent $4.4 million in legal fees last year, with much of that going to defend its Hawaiians-first admission policy.
The trust announced Monday that it had settled a lawsuit that challenged its century-old Hawaiians-first admissions policy just as the U.S. Supreme Court was about to decide whether to take the case.
Reach Rick Daysog at email@example.com.
May 15, 2007
Disappointment, praise follow
A lawsuit against Kamehameha Schools over their Hawaiians-only admission policy is dropped in a settlement
By Alexandre Da Silva, firstname.lastname@example.org
Kamehameha Schools has survived another challenge to its Hawaiians-only admissions, but both supporters and opponents of the policy say the school should be prepared for more battles.
A non-Hawaiian student who was denied admission settled his lawsuit against the school, which was pending before the U.S. Supreme Court, it was announced yesterday. Terms of the settlement were not disclosed.
Honolulu attorney H. William Burgess, an opponent of programs for native Hawaiians who filed a brief in support of the plaintiff, told the Associated Press that he feels the settlement opens the door for other students to bring lawsuits against Kamehameha since there was likely a big payoff in this case.
"I assume if it was a generous settlement, then that to me is encouragement to other applicants," he said. "And it will be easier because it's a simple complaint."
The fear of more challenges to Kamehameha Schools and to government programs that favor native Hawaiians has many isle politicians calling for passage of the so-called Akaka Bill, which is currently before the U.S. Senate. The bill would set up a framework for a native Hawaiian government to be recognized by the federal government.
"We must remain mindful that a host of other important programs serving native Hawaiians remain targets of opportunistic lawsuits," said Haunani Apoliona, chairwoman of the Office of Hawaiian Affairs. She called for an increased effort in Washington to pass the Akaka Bill.
Gov. Linda Lingle echoed the sentiment. "This action doesn't remove the need for the Akaka Bill. The need is stronger than ever," she said.
The lawyer for a student who dropped his lawsuit challenging Kamehameha Schools' policy of giving enrollment preference to Hawaiians said he is disappointed at losing a chance to win the civil-rights case before the U.S. Supreme Court.
"Winning this case in the Supreme Court certainly is something that I had hoped to do," Eric Grant, a Sacramento, Calif., attorney who took the case in 2003, said yesterday. "It's fair to say I'm disappointed ... but lawyers represent clients and clients make the final decision."
The student, whose application to Kamehameha was rejected because he lacked Hawaiian blood, withdrew the suit because he was "satisfied" with an out-of-court settlement the school was willing to accept, said his other attorney, John Goemans.
"We've done the best job that we could for our client, and that's what we are in business to do," he said.
Details of the settlement were not disclosed.
William Burgess, a critic of the bill to grant federal recognition to native Hawaiians, said, "I think this opens the door to more lawsuits."
Burgess said he thinks Kamehameha must have offered the unknown student a large settlement.
"I think they must have decided to put some money on the table, and I think it must not have been a small amount," Burgess said.
The student, whose name has been kept secret, graduated with honors from a local public high school in spring 2006 and is now finishing his first year of college on the mainland, Grant said. His suit, which was pending before the high court, argued that the admission requirement is race-based and violates the Civil Rights Act of 1866.
School officials hailed the settlement, saying Kamehameha can continue its 120-year-old practice of favoring Hawaiian applicants. The policy, according to officials, follows the 1883 will of Princess Bernice Pauahi Bishop, who set up the school system to remedy economic and educational disadvantages endured by native Hawaiians.
Backed by a $7.6 billion charitable trust, Kamehameha's tuition is heavily subsidized, and only one in eight applicants get in. Only two non-Hawaiians have been accepted to the school in recent years.
"Our work to fulfill our missions and Pauahi's vision, on our campuses and in our communities, can proceed without distraction," said J. Douglas Ing, chairman of the schools board of trustees.
In summer 2005 some 15,000 native Hawaiians marched through downtown Honolulu to protest a 9th U.S. Circuit Court of Appeals ruling striking down Kamehameha's policy as "unlawful race discrimination." Hawaiian activists and politicians feared that other programs benefiting Hawaiians also could be threatened if the school lost the case.
Kamehameha narrowly won its appeal in December, when a panel of federal judges voted 8-7 to affirm U.S. District Judge Alan Kay's 2003 ruling in favor of the school.
The settlement that stopped the suit came about two months after the student's attorneys asked the Supreme Court to consider the case.
Gov. Linda Lingle said the four-year battle highlights the need for passage of the Native Hawaiian Government Reorganization Act, the so-called Akaka Bill before Congress, which would give Hawaiians federal recognition.
"I believe Kamehameha Schools is perhaps the most important institution for preserving Hawaiian culture," she said.
SUITS CHALLENGE LEGALITY OF HAWAIIAN PROGRAMS
A look at recent litigation involving programs and entitlements for native Hawaiians:
Rice v. Cayetano. Landmark case in which the U.S. Supreme Court ruled in February 2000 that OHA is a state agency and that all citizens have the right to vote for OHA trustees, not just native Hawaiians.
Arakaki v. Lingle. The 9th U.S. Circuit Court of Appeals ruled in February against a group of 14 Hawaii taxpayers who say the state unconstitutionally discriminates against non-Hawaiians by giving money to programs that benefit only Hawaiians. The court stopped short of dismissing the 2002 lawsuit, originally filed as Arakaki v. Cayetano, but overturned its own earlier decision by finding the 14 taxpayers lack legal standing to challenge state funding of the Office of Hawaiian Affairs. The court sent the case back to U.S. District Court in Honolulu to determine if any of the plaintiffs are eligible "in any other capacity."
Brayden Mohica-Cummings. In a case similar to John Doe v. Kamehameha Schools, the non-Hawaiian boy challenged the institution's preference policy. Under a settlement reached in November 2003, Mohica-Cummings was allowed to attend the school's Kapalama Heights campus in exchange for dropping the lawsuit.
John Carroll/Patrick Barrett. In September 2003 the 9th Circuit upheld a lower court's ruling dismissing two lawsuits that challenged Hawaiian entitlements. The court agreed that plaintiffs John Carroll and Patrick Barrett, who filed separate lawsuits in October 2000 that were later consolidated, did not have standing to challenge the constitutionality of Hawaiian programs. Carroll sued to stop state ceded-land payments to the Office of Hawaiian Affairs, arguing that the office serves only Hawaiians and was established by a discriminatory state law. Barrett, a Moiliili resident, challenged the validity of the 1978 state constitutional amendment creating the Office of Hawaiian Affairs and the enactment by Congress in 1921 of the Hawaiian Homes Commission.
March 6, 2007
Racial tensions are simmering in
Hawaii's melting pot
By Martin Kasindorf, USA TODAY
HONOLULU — A violent road-rage altercation between Native Hawaiians and a white couple near Pearl Harbor two weeks ago is provoking questions about whether Hawaii's harmonious "aloha" spirit is real or just a greeting for tourists.
The Feb. 19 attack, in which a Hawaiian father and son were arrested and charged with beating a soldier and his wife unconscious, was unusual here for its brutality. It sparked a public debate over race relations that is filling blogs and newspaper websites with impassioned comments along stark ethnic lines.
These divisive exchanges come as the U.S. Supreme Court and Congress are being asked to tackle another inflammatory racial issue in a state where no race is a majority: special benefits for Native Hawaiians, ranging from preference at an elite private school to free houses on government land. One side says the long-established perks compensate Hawaiians for past wrongs and preserve their valuable culture for the islands. The other side says the benefits discriminate against other racial groups.
The current controversies are exposing racial tensions below the surface of a tropical paradise that Gov. Linda Lingle says is "a model for the world" in diversity and peaceful integration. Simmering divisions pit Hawaiians against other groups, and "locals" of all races against newcomers including immigrants and military members.
At issue now is whether Hawaii will acknowledge and overcome these threats to its friendly reputation.
Last month's road-rage incident began when an SUV driven by Army Staff Sgt. Andrew Dussell, 26, who has served two tours in Iraq, struck the parked car of Gerald Paakaula, 44, at a shopping center, according to a police affidavit filed in court. Paakaula and his 16-year-old son allegedly assaulted Dussell and his wife, Dawn, 23.
The teenager allegedly shouted an obscenity along with the Hawaiian term for a white person, haole (pronounced "howl-ee"), while attacking the soldier.
The court document says the father, a truck driver, picked up the woman and slammed her to the asphalt. The teenager allegedly kicked the husband's face as he convulsed on the ground from a punch to the throat. The couple suffered broken noses, facial fractures and concussions.
In another incident Jan. 27, nine white campers in a beach park on the Big Island of Hawaii were beaten by men in their 20s who told the campers to leave the island, the police report says. Hawaii County Police Maj. John Dawrs describes the assailants as "Pacific Islanders."
Racial troubles in the islands usually don't get much public discussion. In a tourism-dependent state, talk about tensions is "like news about shark attacks," says Jon Van Dyke, a University of Hawaii law professor. "People are afraid they might lose customers."
Now, people are speaking out. Honolulu Prosecuting Attorney Peter Carlisle says he's getting public pressure to add a "hate crime" charge to the felony assault charge against Paakaula. The maximum sentence for assault is five years, but that would double to 10 years if the defendant is convicted of a hate crime. Carlisle says this case doesn't fit Hawaii's hate-crime law requiring intentional "selection" of a victim because of ethnicity, gender or sexual orientation.
Hawaii recorded six hate crimes last year, up from one or two in each previous year since recordkeeping began in 2003, according to the state.
"There is a notion that we have this kind of rainbow society and we all get along really swell," says Jon Matsuoka, dean of the university's School of Social Work. "The reality is that there are racial tensions. They are deep-seated and historical, and that history didn't abruptly stop."
The aloha culture
Hawaii, annexed by the United States as a territory in 1898 and a state since 1959, promotes a picture of aloha. Hawaiians have lavished this "love" greeting on visitors since the first missionaries came from New England in 1820. "In the host culture, tolerance is paramount," says former governor Ben Cayetano, a Democrat. "That is the greatness of Hawaii."
By many measures, Hawaii is a paragon of racial accord. One in two marriages are across ethnic lines, says Lingle, a Missouri-born haole. Most neighborhoods are integrated. In a 2005 Census survey, 21% of residents listed themselves as being of more than one race — the highest percentage of any state.
Hawaii's governors have included Caucasians, the Japanese-American George Ariyoshi, the Native Hawaiian John Waihee and the Filipino-American Cayetano. Honolulu Mayor Mufi Hannemann is Samoan-German. The state's five-member Supreme Court includes a Filipino, a Japanese-American and a Korean-American.
One irritant in this tolerant atmosphere is a string of federal civil rights lawsuits filed since 1996, alleging that special rights for Native Hawaiians illegally discriminate against non-Hawaiians.
Lawyers petitioned the Supreme Court last week to order the private Kamehameha Schools to admit a white student. The school trustees accept few non-Hawaiians, saying they are honoring the will of the Hawaiian princess who established the school in 1883 with an endowment now worth $7.7 billion....
An estimated 246,000 Native Hawaiians live in the islands, 20% of the state's population, according to a Census survey last year. Another 140,000 live in mainland states. All but about 10,000 are of mixed races, state surveys indicate.
Hawaiians are consistently on the bottom rungs statewide in income and school test scores. At Waianae on Oahu's Leeward shore, dozens of homeless Hawaiian families camp in tents on the beach.
'Will there be any Hawaii left?'
Census studies show Native Hawaiian numbers are slowly shrinking. The islands' low-paying service jobs in tourism and the high cost of living — 27% above the national average — have driven so many to migrate to casino jobs in Las Vegas that Hawaiians now call the Nevada city "the ninth island," says Ronald Becker, chairman of the criminal justice program at Honolulu's Chaminade University.
"If all the Native Hawaiians leave, will there be any Hawaii left?" says Dave Young of the state Department of Business, Economic Development and Tourism. "That's what people come here for — the Hawaiian culture."
The court battles over Native Hawaiians' status are stirring emotion. When the phone rings at the home of lawyer John Goemans on the Big Island, he picks up the call in Beverly Hills. He quietly moved a year ago, saying he fears for his safety in Hawaii. He won a federal appeals court ruling in 2005 that struck down the Kamehameha Schools' Hawaiian-preference policy.
In protest, 15,000 marchers rallied at Iolani Palace, seat of the Hawaiian kingdom that white sugar planters overthrew in 1893 with help from U.S. Marines. Signs at the rally said "Hawaiians only" and "stop stealing from Hawaiians." Lingle, the Republican governor, spoke in support of the rights of Native Hawaiians.
"Well, 15,000 people marching — and I'm the guy they're looking for — is alarming," Goemans says, explaining his flight. "Hawaiians are wonderful people, but there are some extreme firebrands." The appeals court reheard the case and reversed its ruling in December. Now, Goemans is asking the Supreme Court to review the case.
"Don't they understand the pain that they're putting everybody through?" says Dee Jay Mailer, CEO of the Kamehameha Schools, an academic powerhouse.
"It's really less about an admissions policy than about the loss of one of the last treasures of the Hawaiian people," Mailer says.
Haunani Apoliona, chairwoman of the state Office of Hawaiian Affairs (OHA), says sympathy for her people is widespread.
Jeanne Larsen, 56, a hotel sous-chef who moved here from Tahiti in 1975, says: "We feel sad for them because of what was done to them years ago."
To compensate for the U.S. role in the royal overthrow, Congress in 1920 authorized free houses for 99 years to people who can prove they have at least 50% Hawaiian blood. The state manages the program on 200,000 acres of government land; 8,000 families occupy houses, with 20,000 on a waiting list. The state created OHA in 1978 to run other exclusive benefit programs.
Sen. Daniel Akaka, D-Hawaii, who is of Hawaiian and Chinese ancestry, spearheaded through Congress a 1993 resolution declaring the overthrow illegal and apologizing to Hawaiians for the U.S. role in the coup. President Clinton signed the apology.
Hawaiians are having mixed success defending their privileges. In 2000, the Supreme Court ruled that Hawaii had set up an illegal "racial classification" when it limited elections for OHA trustees to Native Hawaiian voters. A lawsuit brought by a taxpayer group attacking OHA and the home-lease program soon will be dismissed on procedural grounds, but similar suits are sure to be filed, state Attorney General Mark Bennett says.
If Hawaiians lose their favored status in the courts, they could regain it in Congress. Akaka filed a Senate bill that would allow Hawaiians to form a separate government like those of American Indian tribes.
Federal recognition of such an entity would put Hawaiians in a position to keep their perks and demand more.
Last June, a Republican filibuster stopped the controversial Akaka bill from reaching the Senate floor for a vote. Akaka reintroduced it in January. "With a Democratic majority, the prospects are better in this Congress," says Akaka, 82.
Hawaiians are split over how to improve their group's status. Sandra Puanani Burgess, 55, the part-Hawaiian co-founder of the group Aloha for All, says Hawaiians should have no special rights.
The most radical want to secede from the United States. Ikaika Hussey, 28, of Hui Pu ("to unite"), a group opposing the Akaka bill, says it fails to offer "the option of independence."
Some Hawaiians say independence is desirable but impracticable. "Secede? Oh, God, we would love to," says Haunani-Kay Trask, 57, a Hawaiian studies professor at the University of Hawaii. "As a nationalist, I hate the United States of America. But (independence) doesn't live in the political-military world we live in, with 26 military bases in Hawaii and 7 million tourists a year."
'Not much acceptance'
Booming tourism is bringing some new social stresses. Hawaii's unemployment rate was 2% in December, the USA's lowest. The hot economy is attracting poorly educated immigrants who can have problems fitting in. Groups of young Micronesians from Western Pacific islands such as Chuk sometimes fight with other groups in low-income Honolulu neighborhoods, police reports say.
Public schools hire Frank De Lima, a popular local comedian who specializes in ethnic jokes, to warn kids that slang racial descriptions can be explosive insults to immigrants or children whose parents are in the military.
Some in Hawaii's 24.9% minority of whites say they sense discrimination.
David Bell, 50, a Honolulu teacher, is white and Canadian Indian. Even after 26 years here, he says, he feels snubbed for looking white. "There's not that much acceptance," he says. "It bothered me, but after a while you learn to deal with it. You have to earn their acceptance."
Karen Knudsen, chairwoman of the state Board of Education, says, "You will hear people say 'dumb haole,' and it's not a big deal. But you would never say 'dumb' any other group. That's considered offensive."
Military personnel say they can feel like outsiders. "At our first-day briefing, we are told to avoid certain places after dark," says Army Pfc. Jennifer Olsen, 29, of Redding, Calif., based at Oahu's Schofield Barracks.
"Sometimes, being white, we go to a store and some people are first more willing to help their own. They're very much against the military people being here. I don't understand it."
For all the problems, Hawaii is a safe place. Rates of murder and other violent crimes are low, prosecutor Carlisle says.
"The race thing isn't perfect here," he adds. "But there is a lot that people can learn about race relationships from Hawaii."
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FIND MORE STORIES IN: Congress | Supreme Court | Hawaii | Honolulu | Hawaiian | Oahu | Honolulu Advertiser | University of Hawaii | Carlisle | Army Staff Sgt | Gov. Linda Lingle | Native Hawaiian | Native Hawaiians
USA Today - 03/06/07 - Hawaii-Cover
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For more, GO TO > > > APARTHEID-HAWAIIAN STYLE!
March 3, 2007
Ruling by high court sought
Attorneys seek a review and reversal of an appeals court's decision
that backed Kamehameha Schools' admission policy
By Alexandre Da Silva, Star-Bulletin
Attorneys for a student challenging Kamehameha Schools' admission policy of giving preference to native Hawaiians have asked the U.S. Supreme Court to review an appeals court ruling upholding the century-old practice.
Eric Grant, a Sacramento, Calif., attorney representing a non-Hawaiian student who was denied admission at the prestigious school, filed the 34-page petition Thursday. It seeks a review and reversal of a December ruling on the case by a 15-judge panel of the 9th U.S. Circuit Court of Appeals.
The panel voted 8-7 to affirm U.S. District Judge Alan Kay's 2003 ruling that found Kamehameha's preference policy does not violate federal civil rights laws and has the legitimate purpose of addressing economic and educational imbalances suffered by native Hawaiians.
Kamehameha Schools spokesman Kekoa Paulsen said the school will read the petition and, within 30 days, ask that the high court reject the request.
The student, named as John Doe in court papers, had his application to Kamehameha denied twice after he told the school that none of his grandparents had Hawaiian blood.
He graduated from a local public school with honors last spring and is enrolled in a four-year undergraduate college, according to his lawyers.
Grant expects the Supreme Court to decide whether to take up the case sometime before the summer recess in June. If the court agrees to the petition, the case could be heard as early as October, he said.
The petition contends that the appeals court's decision to back the school's policy is wrong because it creates an exemption to the Civil Rights Act of 1866, authorizing Kamehameha "to operate racially segregated schools forever," Grant said.
"That's a sufficiently important ruling that the Supreme Court ought to have the last ruling on whether that's permissible," he said.
In defending its 118-year-old admission policy, Kamehameha Schools has argued that it serves to remedy educational, social and economical disadvantages suffered by native Hawaiians since the U.S.-backed overthrow of their kingdom in 1893. The school contends that Hawaiians also have a special political relationship with Congress, which has enacted a number of laws aimed at helping them.
"We have a strong case to oppose a petition for certiorari before the U.S. Supreme Court," Kamehameha Schools CEO Dee Jay Mailer said in a statement. "This case does not raise issues of national importance. There is simply no other school in the country like Kamehameha."
The school, which enrolls some 6,715 students, was established in 1887 under a charitable trust set up by Princess Bernice Pauahi Bishop to educate the children of Hawaii. The $7.6 billion trust funds K-12 campuses on Oahu, Maui and the Big Island, as well as 31 preschools statewide.
~ ~ ~
June 25, 2003: Attorneys for an unidentified non-Hawaiian boy sue Kamehameha Schools in federal court, challenging the school's Hawaiians-only preference for admissions. The suit contends that federal civil rights laws prohibit private schools from denying admission on the basis of race.
Nov. 17, 2003: U.S. District Judge Alan Kay strikes down the challenge by the unidentified student. Attorneys for the student later appeal the case to the 9th U.S. Circuit Court of Appeals.
Aug. 2, 2005: Two out of three justices on a 9th Circuit panel rule that the schools' admission policy constitutes "unlawful race discrimination." The ruling reverses Kay's ruling.
Dec. 5, 2006: A 15-judge panel of the 9th Circuit votes 8-7 to affirm Kay's November 2003 ruling that the preference policy does not violate federal civil rights laws. The ruling reverses the Aug. 2, 2005, ruling against Kamehameha Schools.
Thursday: Attorneys for John Doe ask the U.S. Supreme Court to review the appeals court's Dec. 5 ruling.
February 6, 2007
Court names Kalama new KS trustee
The banker will fill out Lau's term at Kamehameha
By Nelson Daranciang, Star-Bulletin
The state Probate Court picked First Hawaiian Bank Executive Vice President Corbett A.K. Kalama yesterday to fill out the remaining term of outgoing Kamehameha Schools Trustee Constance Lau.
On April 1, Kalama will join Robert Kihune, Diane Plotts, Nainoa Thompson and new Chairman J. Douglas Ing on the five-member board.
Ing shared the news in a written statement sent to trust employees yesterday.
"We look forward to the benefit of Corbett's thoughts, talents and experience in all aspects of fulfilling Pauahi's wishes through her trust," the statement said. Princess Bernice Pauahi Bishop, great-granddaughter and last royal descendent of Kamehameha I, established the trust for the schools in her will.
Kalama's selection was also welcome news to Adrian Kamalii, president of Na Pua A Ke Alii Pauahi, a nonprofit group whose members include alumni, parents, students and faculty of Kamehameha Schools.
"We're happy to see someone chosen who is culturally grounded. He's been very active in the revitalization of canoe paddling -- he's active with the Polynesian Voyaging Society -- his upbringing was very cultural and his contemporaries are now cultural practitioners," he said.
What made Kalama's selection even more attractive is his business experience, Kamalii said.
Probate Judge Colleen Hirai selected Kalama, 50, from a list of three finalists recommended by a court-appointed trustee-screening committee. The other finalists were local attorneys Allen K. Hoe and former city Budget Director Ivan M. Lui-Kwan.
Kalama has been with First Hawaiian since 1982 and is also the bank's manager of the Oahu region office, and the personal banking and small-business banking segment manager.
He serves as a board member on several public and private organizations including the Samoan Service Providers Association and the John A. Burns School of Medicine Imi Hoola Advisory Board. He was chairman of the community working group that provided input to U.S. Sen. Daniel Akaka on his bill for federal recognition of native Hawaiians.
The search for a new trustee started after Lau announced her intention to step down last February when she was named chief executive officer and president of Hawaiian Electric Industries. Her term as Kamehameha Schools trustee expires June 30, 2008.
February 6, 2007
Kalama named schools trustee
By Rick Daysog, Honolulu Advertiser
The state Probate Court yesterday appointed First Hawaiian Bank executive Corbett Kalama as a trustee of the $7.7 billion Kamehameha Schools.
Kalama replaces Constance Lau, who announced last year that she would step down from the trust's five-member board after she was named chief executive officer of Hawaiian Electric Industries Inc.
Kalama is an executive vice president at First Hawaiian and is responsible for the bank's O'ahu region, where he manages about 500 employees and $3.8 billion in business and individual assets.
"Corbett is a fine Hawaiian leader, and I think he will do a good job as a trustee," said Jan Dill, a 1950 Kamehameha Schools graduate and a board member of Na Pua a Ke Ali'i Pauahi, an organization made up of Kamehameha Schools parents and graduates.
Kalama, whose appointment takes effect April 1, will serve the remainder of Lau's five-year term, which expires on June 30, 2008. Kalama can be reappointed for a maximum of two five-year terms.
He joins trustees Diane Plotts, Robert Kihune, Nainoa Thompson and J. Douglas Ing. Ing was reappointed Friday to a five-year term.
Trustees each receive about $100,000 in annual compensation; the board's chairman earns about $110,000....
All three finalists are of Hawaiian ancestry.
"You had three good candidates," said Oswald Stender, Office of Hawaiian Affairs trustee and former Kamehameha Schools trustee. "But having someone with a financial background to replace Connie is great. ... He's a very good person with very strong Hawaiian values."...
Kalama joins a trust that is in the middle of a 15-year strategic plan to broaden its educational reach. His appointment also comes as the school has faced several legal challenges to its Hawaiian-preference admissions policy.
The 9th Circuit Court of Appeals upheld the policy last year but the case could wind up in the U.S. Supreme Court.
Kalama has been a First Hawaiian employee since 1982. He is a trustee of the University of Hawai'i Foundation and has served as trustee for the Queen Lili'uokalani Children's Center.
Prior to joining First Hawaiian, Kalama worked as a teacher at Kailua High School. Kalama's wife is a schoolteacher, and three of his four children graduated from the Kamehameha Schools.
"Corbett is an exceptional banker and a man of integrity," said First Hawaiian President and Chief Executive Officer Don Horner. "His personal background, experience, and heart are well suited for the mission of Kamehameha Schools."
Paulette Moore, a 1952 Kamehameha Schools graduate, said Kalama impressed alumni and members of the school's 'ohana during a candidates forum last November.
During his presentation, Kalama recited his genealogy in the Hawaiian language, which convinced many of the kupuna in the audience that he was the right person, Moore said.
"We felt we didn't need another lawyer. We needed someone with a different point of view," said Moore. "Because he came from such a large family that struggled, he understands how it is that Hawaiians live on the beach."
Na Pua's Dill said members of his organization, while pleased with Kalama's appointment, were critical of the way in which the court went about the selection. Members of the Kamehameha Schools 'ohana had too little input in the way the selection was made, he said.
"The composition of the selection process guarantees the continuation of status quo," Dill said.
February 6, 2007
Corbett Kalama appointed as
Kamehameha Schools trustee
Advertiser reports: "The state Probate Court yesterday appointed First Hawaiian Bank executive Corbett Kalama as a trustee of the $7.7 billion Kamehameha Schools." Star-Bulletin also has the story.
With his background as a banker touted as one of his main qualifications, I just hope folks remember his bank's record of denying loans to Native Hawaiians at a highly disproportionate rate (for example, First Hawaiian Bank denied refinancing applications from native Hawaiians and other Pacific Islanders at a rate 4.5 times greater than applications from Caucasians and 3 times the denial rate for Asians, even when Hawaiians were in higher income brackets), and push him to use KS resources to help start a Native Hawaiian Bank.
Probably over 10 years ago, Bumpy and I had lunch with Corbett and he personally committed to us, face to face, that he would support a Native Hawaiian Bank. Still waiting. Now he is really in a position to do it.
January 2, 2007
Race Separation Ratified in
9th Circuit Court Decision on Kamehameha Schools Admissions Policy
By Bruce Fein, The Hawaii Reporter
The U.S. 9th Circuit Court of Appeals has ratified racism that celebrates Native Hawaiian ancestry with tortured reasoning reminiscent of Jim Crow. The 9th Circuit's 8-7 en banc ruling in Doe v. Kamehameha Schools (Dec. 5) upholding a racially exclusionary admissions policy for Kamehameha Schools marks manipulative judging at its worst.
King Kamehameha I's signature contribution to Hawaii's legal and political culture was the general erasure of distinctions between Native and non-Native Hawaiians. The king anticipated United States Chief Justice Harlan Fiske Stone's admonition that racial distinctions are odious to a free people.
The Kamehameha Schools were created under a charitable testamentary trust established by the last direct descendant of King Kamehameha I, Princess Bernice Pauahi Bishop. The trustees chose to confine admissions to students with at least one Native Hawaiian ancestor because the exclusion of non-Native Hawaiians was thought to represent the wishes of Mrs. Bishop. Native Hawaiians were not preferred to overcome past legal, social, economic or other discrimination. Indeed, Native Hawaiians have been special favorites of the law for more than a century since annexation.
Nor were Native Hawaiians favored to promote educational diversity. The exclusion of non-Natives impaired that objective. In sum, the admissions policy amounted to racial exclusion or the sake of exclusion.
A non-Native applicant challenged the Kamehemeha Schools' "Native Hawaiians Only" admissions policy under a federal civil rights statute prohibiting racial discrimination in making or enforcing contracts, Title 42 of the U.S. Code, Section 1981. (The social ostracism unleashed against persons in Hawaii who challenge the political correctness of Native Hawaiian preferences obligated the plaintiff to sue under the pseudonym "John Doe.")
The Supreme Court held in Runyon v. McCrary (1976), that Section 1981 prohibits private schools from racially discriminatory admissions policies. Indeed, the high court later held in Bob Jones v. United States (1983) that an unexpressed public policy of the United States prohibited tax exemptions for discriminating private schools.
The 9th Circuit, speaking through Judge Susan P. Graber, insisted, nevertheless, that the racial exclusivity of the Kamehemeha Schools was a proper remedial measure. But a remedy implies a wrong. And Native Hawaiians have never received less than equal treatment under federal or state law. Further, Native Hawaiian enrollees are not vetted for past discrimination. Their families may be highly privileged.
Judge Graber absurdly maintained that, "Native Hawaiian students are systematically disadvantaged in the classroom." She was unable to point to any class activity or instruction indicating Native Hawaiians were treated differently from non-Native Hawaiians. The judge simply recited that as a group Native Hawaiians displayed less academic success than their non-Native Hawaiian counterparts. But lesser performance does not establish discrimination. If it did, every subperforming minority group would hold a federal civil rights claim against every public or private school in the country.
Judge Graber argued Kamehameha Schools' racial exclusiveness was justified to help perpetuate Native Hawaiian culture. But that reasoning endorses racial balkanization, and turns E Pluribus Unum on its head. Whites, blacks, Hispanics, Chinese Americans, Japanese Americans, etc. would be permitted monochromatic schools to promote their respective cultures.
Judge Graber scolded plaintiff Doe for complaining about his race-based exclusion. She lectured that "students denied admission by Kamehameha Schools have ample and adequate alternative educational options," a variation of the "separate-but-equal" doctrine that the Supreme Court repudiated 52 years ago in Brown v. Board of Education (1954).
In a feat of Orwellian logic, the judge scorned Doe's legal expectation of nondiscriminatory treatment because Kamehameha Schools' racial discrimination had been notorious for 118 years: "When the schools began, a non-Native Hawaiian had no expectation of admission to the schools. ... In the intervening 118 years, the schools' admissions policy, and therefore the expectations of non-Native Hawaiians, has remained constant. Thus, denial of plaintiff's application for admission [based on race] 'unsettled no legitimate, firmly rooted expectation.' "
With that reasoning, Jim Crow would still be thriving in the South because blacks knew at the inception of the Civil Rights Movement they confronted a racism that had been continual since the end of Reconstruction and thus had no reasonable expectation of equal treatment.
Judge Graber fancifully argued that the schools' 118 years of racial exclusiveness was temporary, not perpetual, and thus satisfied relevant precedents regarding preferential admissions. The exclusiveness is scheduled to continue until the achievement gap between Native Hawaiians and non-Native Hawaiians has been eliminated. But exclusiveness for more than a century has done nothing to narrow the gap. Adding more zeroes to zero still equals zero.
The 9th Circuit surrendered reasoning, law and moral justice to placate a moblike atmosphere in Doe. It embarrassed many of the profiles in judicial courage that accelerated that end of Jim Crow.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.
HawaiiReporter.com reports the real news, and prints all editorials submitted, even if they do not represent the viewpoint of the editors, as long as they are written clearly. Send editorials to mailto:Malia@HawaiiReporter.com
December 8, 2006
Black Group Decries Discriminatory
Hawaiian Admission Policy
Court Ruling Allowing Preferential Treatment of Native Hawaiians Greases the Skids for Race-Based Island Government
By David Almasi , Hawaii Reporter
Members of the black leadership network Project 21 decry a Ninth Circuit federal court ruling that allows a Hawaiian school to discriminate against non-native Hawaiians, and note that the ruling could jump-start legislation stalled in Congress to create a race-based island government that directly contradicts our nation's "melting pot" tradition of inclusion.
"Responsible lawmakers, jurists and the residents of Hawaii oppose race-based preferences," noted Project 21 chairman Mychal Massie. "This ruling once again shows how a handful of unelected judges can override the will of the people, and how important it is to have judges who strictly interpret our Constitution."
Established in 1887 by the will of the last royal descendent of King Kamehameha, the nonprofit Kamehameha Schools currently give "first right" of admission to those with native Hawaiian ancestry. In a razor-thin 8-7 decision, the federal 9th Circuit Court of Appeals ruled that this preferential policy could continue. In her majority opinion, Judge Susan Graber said the policy helps "counteract the significant, current educational deficits of native Hawaiian children in Hawaii."
In his dissent, Judge Jay Bybee noted: "I believe the majority's novel approach to statutory interpretation is readily manipulable and would enable courts to rewrite statutes whenever they want to save a particular program, contract or enactment."
The Doe v. Kamehameha Schools ruling is also being seen as a boost for "The Native Hawaiian Government Restoration Act," a bill proposed by Senator Daniel Akaka (D-HI) to create a native Hawaiian government with sovereign immunity akin to that enjoyed by Indian tribes. Critics of the legislation say it could create a race-based government that would institute a virtual caste system and overturn federal laws and safety regulations as well as endanger the operations of military bases such as Pearl Harbor.
A May 2006 poll commissioned by the Grassroots Institute of Hawaii found that 67 percent of Hawaiian residents oppose the proposed Akaka bill and 80 percent generally oppose race-based preferences. Despite this overwhelming public rejection, Professor Jon Van Dyke of the University of Hawaii's Richardson School of Law told the Honolulu Star-Bulletin of the ruling, "This gives the green light, I would think, for Congress to pass the Akaka bill."
"All of this is a transparent attempt to create race-based preferences for a select group of people," said Project 21's Massie. "This ruling must be viewed as an incremental attempt to establish a type of sovereignty which would ultimately relieve native Hawaiians of all federal responsibility. Nothing in said formula, however, convinces reasonably-minded persons that the so-called plight of these people would improve."
In 2000, a decisive 7-2 ruling by the U.S. Supreme Court overturned a "Hawaiians only" voting provision for the state's Office of Hawaiian Affairs.
Regarding the record of the 9th Circuit Court of Appeals, the Center for Individual Freedom noted in 2004 that it is "the most reversed court in the country" with 250 percent more unanimous reversals of its decisions appealed to the U.S. Supreme Court than any other circuit at that time.
“The 9th Circuit continues to show its proclivity for ruling from the bench in favor of that which is antithetical to a civil and unified American fabric. This is exactly why it is not only the most reversed court in the history of judicial circuits, but also the most frequently chastised court by the U.S. Supreme Court," said Massie.
~ ~ ~
See also: OUST vs. Harmon, Witness: Barack Obama; Vultures in the School Yard
For more on the Akaka Bill...
July 6, 2000
We may have no
Instead of a 2-step process in Congress, they may seek
political status and federal recognition in a single bill
By Pat Omandam, Star-Bulletin
A draft federal bill initially aimed at protecting federal programs for Hawaiians now includes a process that creates a native Hawaiian government.
The original idea was to first seek clarification of the political status of Hawaiians in the wake of the Rice vs. Cayetano decision by the U.S. Supreme Court this year, and then return to Congress in another session for federal recognition of Hawaiians.
The latest proposal, which Hawaii's congressional delegation is expected to introduce next week, heeds some Hawaiian leaders' and others' fears that there might not be another opportunity to complete the two-step approach supported by U.S. Sen. Daniel Akaka.
Corbett Kalama, chairman of the Native Hawaiian community working group that provided key input for Akaka's bill, said changes that set up a Hawaiian governing body are positive. He said the group insisted language be included that proposes a government-to-government relationship because of such strong concern over whether there will be another chance.
Kalama, a First Hawaiian Bank senior vice president and American Bankers Association lobbyist, understands there is a great range of views on sovereignty and that there will be many chances to amend the measure once it is introduced.
"We view it not as an end, but as a beginning,"he said. "It's a very important step."
"We depend on Congress to do a lot of different things. With the recognition itself, it will be a step in a direction we want to move. Without the recognition, we'll have challenges. The community will have challenges moving on into the future," Kalama said.
As proposed, Hawaiians would have a year to come up with a list of adult Hawaiians who can trace their ancestry in Hawaii before 1893. Once the list is created, it would be certified by the U.S. Secretary of Interior before a general meeting is held by those on the list to elect people to a native Hawaiian interim council.
This council would work on a constitution and bylaws that, once ratified, would form a native Hawaiian governing body.
This reorganized Hawaiian government -- which would be incorporated and recognized by the federal government -- would have a strong say in the sale or lease of ceded lands, determine its own membership, and negotiate with federal, state and local governments.
"I'm very hopeful that a Hawaiian bill will get some serious consideration," said Rowena Akana, an Office of Hawaiian Affairs trustee and a member of Akaka's working groups.
Other changes to the draft from last May include changing the name of the proposed Office of Native Hawaiian Affairs to the Office of Special Trustee for Native Hawaiians. The office, which is envisioned as the coordination point within the federal government on native Hawaiian issues, will be housed in the Interior Department with a representative from the U.S. Justice Department.
The draft bill also changed the name of the proposed federal interagency council to the Native Hawaiian Interagency task force, which would mandate coordination of federal policy on Hawaiian issues.
Akaka spokesman Paul Cardus said he expects the draft bill to be introduced in the U.S. Senate next week.
~ ~ ~
For more on the Akaka Bill...
Apartheid - Hawaiian Style
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Originally posted: January 4, 2007
Last updated September 6, 2009, by The Catbird
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