BOBBY N. HARMON, CPCU, ARM
Email:
Website: www.the-catbird-seat.net
New Website: www.kycbs.net
Defendant, Pro Se
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JAMES B. NICHOLSON, TRUSTEE, ) CASE NO. CV05-00030 DAE KSC
)
Plaintiff, ) DEFENDANT BOBBY N. HARMON’S
) MOTION TO RECUSE HONORABLE
)
BOBBY N. HARMON, )
)
Defendant )
)
________________________________)
DEFENDANT BOBBY N. HARMON’S MOTION TO RECUSE
HONORABLE JUDGE KEVIN S.C. CHANG
COMES NOW Defendant BOBBY N. HARMON and moves to recuse Honorable Judge Kevin S.C. Chang from the above entitled matter under 28 USCS Sec. 455, and Marshall v. Jerrico Inc., 446 US 238, 242, 100 S.Ct. 1610, 64 L. Ed. 2d 182 (1980).
“The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law.”
Barron’s Dictionary of Legal Terms, defines recusal as follows:
RECUSAL - Disqualification of a judge, jury or administrative officer for prejudice or interest in the subject matter. A judge may be recused as a result of objection by either party, or may voluntarily disqualify himself or herself if he or she fears that he or she may not act impartially, or that some circumstance will lead to a suspicion of bias.
Despite previous letter requests by the Defendant for Judge Kevin Chang to disqualify himself due to material conflicts-of-interest, he has declined to take such action. Due to information previously unknown to Defendant, which recently came to light in large part though two recently published books, Broken Trust: Greed, Mismanagement and Political Manipulation, by Samuel King and Randall Roth, and Lost Generations: A Boy, A School, A Princess, by J. Arthur Rath, Defendant now believes that he has no alternative but to file this formal Motion for Recusal.
Defendant sincerely believes, and greatly fears, that he cannot receive a fair hearing from Judge Kevin Chang, for the following reasons:
1. There were a number of underlying court cases related to the referenced action which dealt with the termination of Bobby N. Harmon by Kamehameha Schools and its captive insurance company subsidiary, P&C Insurance Company. One of these underlying cases was my Racketeer Influenced & Corrupt Organizations (RICO) lawsuit against the then-trustees of Kamehameha Schools Bishop Estate, Federal Insurance Company, Marsh & McLennan, Inc., the directors and officers of P&C Insurance Company, and others. At the same time that these cases were being adjudicated, Judge Kevin S.C. Chang was the judge in Attorney General Margery Bronster’s lawsuit (EQ2048) to remove the former trustees. I was a named witness in that case, and had provided written evidence and testimony to the Attorney General’s office regarding accounting fraud, tax evasion, racketeering, kick-backs, illegal non-bid contracts, cover-ups, obstruction of justice, and other wrongful acts involving Kamehameha Schools, their captive insurance company, P&C Insurance Company, their insurance broker, Marsh & McLennan Companies, Inc., Federal Insurance Company, Inc. (a member of The Chubb Group), and other entities. Had I been afforded a trial by jury of my peers in this case, as I had requested, or even a public hearing, one of my arguments would have been that these illegal activities which I reported nearly a decade ago, have continued through the interim trustees and the current trustees, who were, in fact, appointed by Judge Kevin Chang.
2. Although ALL of the former, interim and present Kamehameha Schools trustees are connected with the subject case, I wish to bring special attention to the relationship of Judge Chang and former trustee Henry Peters, who had also requested that Judge Chang be recused from hearing his case. I quote the following excerpt from the September 3, 1999 edition of the Honolulu Star-Bulletin:
Peters’ lawyer wants judge off case
A lawyer for ousted Bishop Estate trustee Henry Peters has asked Probate Judge Kevin Chang to recuse himself from the upcoming trial over Peters' permanent removal from the multibillion-dollar trust's board.
But a state attorney called the recusal petition a last-minute, desperate move.
In court papers filed yesterday, Peters' attorney, Renee Yuen, said that Chang should voluntarily recuse himself or be disqualified due to an appearance of a conflict of interest.
Yuen said the appearance of a conflict arises from Chang's former affiliation with the law firm of Watanabe Ing & Kawashima, which is representing the Bishop Estate's interim trustees in their efforts to permanently remove trustees Peters, Richard "Dickie" Wong and Lokelani Lindsey.
Chang has been an associate and partner of the law firm but left it to become a Circuit Court judge in 1993.
Yuen noted that Watanabe Ing had represented the Bishop Estate in the past, but late last year the estate sued the firm for legal malpractice arising from its handling of a Big Island civil suit. Yuen said Chang last year recused himself from hearing the previous malpractice case against the law firm....
Peters' petition comes after Chang on May 7 temporarily removed him and fellow trustees Wong, Lindsey and Gerard Jervis, after the Internal Revenue Service threatened to revoke the estate's tax-exempt status if the trustees were not replaced.
Chang's historic removal order also appointed a five-member interim board, which is seeking the former trustees' permanent removal.
A status conference is scheduled for today to set a date for the trial for permanent removal.
Deputy Attorney General Hugh Jones said there is no basis for Chang's recusal, which comes nearly two years after Chang first became involved in the Bishop Estate case.
Jones noted that Chang had previously disclosed his former relationship with the Watanabe Ing firm, and Peters until now made no objection over the judge's former employment.
"The problem is not the judge," Jones said. "The problem is Mr. Peters' inability to see reality at this point and his inability to do the right thing and submit his resignation."
< END OF QUOTATION >
There are a number of statements quoted from this news article which establish definite conflicts of interests in this case:
A. Henry Peters was also a defendant in my RICO lawsuit, the Settlement Agreement for which is a key issue in the instant case. Both cases involved insurance coverages under insurance policies issued by Federal Insurance Company and XL Insurance Company - policies which I personally arranged through the broker, Marsh & McLennan.
B. As quoted above, Peter’s attorney Renee Yuen, said that “Chang should voluntarily recuse himself or be disqualified due to an appearance of a conflict of interest. Yuen said the appearance of a conflict arises from Chang's former affiliation with the law firm of Watanabe Ing & Kawashima, which is representing the Bishop Estate's interim trustees in their efforts to permanently remove trustees Peters, Richard ‘Dickie’ Wong and Lokelani Lindsey.” The same reasoning would hold true in my case. Yuen also noted that “Watanabe Ing had represented the Bishop Estate in the past, but late last year the estate sued the firm for legal malpractice arising from its handling of a Big Island civil suit. Yuen said Chang last year recused himself from hearing the previous malpractice case against the law firm.” This statement gives further evidence that Judge Chang should recuse himself from this case, because the case that Yuen is referring to is the wrongful termination lawsuit filed by William Rosehill, which occurred during the time I was the Risk Manager for Kamehameha Schools. This was one of the cases that I described in my RICO lawsuit as not being reported in a timely manner to the insurance carriers, but was being handled, or mishandled, by Nathan Aipa, Colleen Wong and others. Instead of turning the responsibility of handling this claim to an independent claims adjuster, they engaged attorney Douglas Ing directly, with resultant problems when I finally learned of the claim and notified the insurance carrier. This situation was also described in my RICO lawsuit which is one of the websites that the Office of the United States Trustee is now demanding that I remove. Furthermore, Judge Chang’s former business partner and associate, Douglas Ing, is now a Bishop Estate trustee, appointed, coincidentally, by Judge Kevin Chang.
C. The William Rosehill case was not the only time the Legal Group failed to report major claims to the insurance carriers. In my testimony to Deputy Attorney Generals Hugh Jones and Dorothy Sellers in EQ2048, I gave examples of several instances where Nathan Aipa and Louanne Kam, did NOT REPORT major claims to the insurance carriers in a timely manner. Two such cases were the McKinley Methane and Wayne Rogers cases. By violating the claims reporting clauses in their insurance policies, coverages would be rendered void. The legal fees and costs for handling these cases would then be paid from the General Counsel’s account, rather than by the insurance company, which was tantamount to defrauding the estate and robbing the beneficiaries of millions of dollars. It is now evident that what happened in EQ2048 and in CV99-00304-DAE (the “RICO” lawsuit) was that, either these claims were not promptly and properly reported to the insurance carriers, or that they were subsequently not properly handled by experienced and licensed claims adjusters. I maintain that this is the reason why XL Insurance declined to pay ANY claims from their $50 million excess liability policy, either in EQ2048, or in settlement of my RICO lawsuit. As evidence of this, I quote from a letter dated April 27, 2000, from then-Attorney General Earl I. Anzai to Kamehameha Schools’ CEO Hamilton McCubbin, and interim Trustees Robert Kihune, David Coon, Francis Keala, and Ronald Libkuman:
“I am writing about the excess lines reinsurance agreement between P&C Insurance Company and X.L. Insurance Co., Ltd. (the Agreement).
“The Agreement encompasses association liability, has an inception date of September 1, 1997, and, as to association liability, has limits of $50 million excess of $25 million. The policy premium was $1.3 million annually and has always been timely paid.
“X.L. contends that there is no coverage for the claims asserted in the AG Surcharge Petition, primarily because of alleged misstatements in representations and warranties by trust employees Christine Lee and Louanne Kam.
“It is beyond argument that the Interim Trustees have a fiduciary duty to redress the breaches of trust of the former trustees. It may be that any dispute with X.L. will create embarrassment for trust employees. ... Nevertheless, what is at stake here is $50 million for the education of Hawaiian children. There is no reason for the Interim Trustees to walk away from $50 million.
On behalf of the trust beneficiaries, I request that the Interim Trustees discharge their duty to redress the breaches of trust by the former trustees by initiating action against X.L. to enforce the Agreement. I also request that you put J&H Marsh & McLennan (MM) on notice and ensure their participation in the mediation. MM set up the P&C integrated risk program and installed American Re as the reinsurer for the first two years. Yet at the critical juncture in late summer 1997, MM assisted the trust in applying to X.L. for reinsurance rather than simply renewing with American Re. We understand that MM was instrumental in preparing the application for reinsurance, that the trust relied on the professional expertise of MM, and that MM may have an ownership or other interest in X.L.
Time is of the essence here and a failure to act by the Interim Trustees will only exacerbate existing problems.
Very truly yours,
Attorney General
cc: Colleen Wong, Esq.
< END OF QUOTATION >
It is obvious, then, that certain employees at Kamehameha Schools, and their outside legal firms, had powerful financial motives to make every effort to “silence” me from revealing their negligent, fraudulent, and self-serving activities - which continue to the present day and in the present case.
3. Due to the fact that Judge Kevin Chang SEALED many of the court documents in EQ2048, and due to the fact that I have been denied a public Hearing in this case, I presently have no way of obtaining the evidence and testimonies from the Attorney General’s office, or others, which are important in order for me to present a proper defense in the subject case. I beg the Court to take note that there has been recent efforts made by several respected members of the community, including Judge Samuel King, Randall Roth, Ed Case, Beadie Dawson, Dave Shapiro and others, to have ALL RECORDS in the cases involving Kamehameha Schools UNSEALED in order that the public can have rightful access to vital factual information regarding the extensive and expensive investigations into the corrupt and illegal practices by various persons at Kamehameha Schools. Several of these persons are still employed by Kamehameha Schools and have been named as witnesses in this case. Being that I have “insider information” regarding a number of the illegal activities that I have described above and in my many letters to law enforcement and regulatory agencies, I can say with certainty that the public release of these SEALED documents would have a material bearing on this case.
4. Trustee Mary Lou Woo had undisclosed conflicts of interests, but one clearly stands out. That is her close working relationship with Kamehameha Schools’ attorney in this case, Susan Tius, Esq. of the law firm of Rush Moore Craven Sutton Morry & Beh. Had I been afforded a trial by jury, as I had requested, or even a public hearing, one of my arguments would have been that there was a conspiracy between Trustee Woo and one or more of Kamehameha Schools’ attorneys for the purpose of OBSTRUCTING JUSTICE in EQ2048, and the IRS audit of Kamehameha Schools and its for-profit subsidiaries, including P&C Insurance Company, in addition to my RICO lawsuit and numerous other investigations and lawsuits involving various KSBE employees (Milton Holt, for example), outside contractors and political cronies that were in progress place during the period that this case was in litigation.
5. One of the disputed Awards made by Arbitrator Judith Neustadter, who likewise refused to remove herself as arbitrator despite overwhelming evidence of bias in that case, was that “Respondent shall immediately expunge any and all material presently accessible through the www.the-catbird-seat.net website or any other website that is created, owned or otherwise controled [sic] by Respondent which references or otherwise mentions any claim, issue, or allegation related to a Protected Subject Matter.” This Award, as stated, clearly violates my First Amendment Rights of free speech. With respect to this Motion for Recusal, I ask the court to take note that Judge Kevin Chang is mentioned in at least 293 separate sub-directories in this website, and Judge David Ezra is mentioned in at least 282 separate sub-directories (a quick search on Yahoo or Google will verify these facts). The majority of these sub-directories contain public documents and information directly related to this case, such as exhibits, witness information, motions, pleadings, etc. Consequently, for ANY judge, but especially for either Judge Chang or Judge Ezra, to order removal of these materials would not only be a violation of my First Amendment Rights, but would also act to obstruct justice in this case.
6. There are currently a number of outstanding claims related to this case which I have asked various parties to report to their insurance carriers. These include claims against the Estate of Trustee Mary Lou Woo; Steven Guttman; Colbert Matsumoto; Island Insurance Company; Marsh & McLennan; Aon Risk Services; Kamehameha Schools/Bishop Estate; P&C Insurance Company; Torkildson Katz Fonseca Moore & Hetherington; Rush Moore Craven Sutton Morry & Beh, and others, involving tax fraud, bribery, kick-backs, bid-rigging, racketeering, obstruction of justice, unfair claims practices, and other wrongful acts. These claims arose from the original settlement negotiations, but are distinct and separate and will not be resolved by any decisions made in this case. I have sent copies of many of these Claims Notices to the IRS, the Attorney General’s office, the Insurance Commissioner, the FBI, the Treasury Department, the SEC and other law enforcement and regulatory agencies. These documents, too, are posted on the Internet, and are in sub-directories that the Office of the U.S. Trustee is now demanding that I remove, and for which they would have me severely sanctioned for having posted there. Again, for Judge Kevin Chang to be in a position to decide whether or not to order the removal of these sites would be tantamount to obstruction of justice in any possible future court actions in the event they are not voluntarily settled with the insurance companies and end up in court. In fact, a reading of the Plaintiff’s Request for Judgment will show that not only does Plaintiff demand that I remove ALL the described material from the website, but they are also demanding extreme financial sanctions for even my REPORTING these claims, and for sending copies to the regulatory and law enforcement agencies that may be involved. As most, if not all, of these unresolved insurance claims involve parties in interest in the instant case, as well as many who have close professional and personal relationships with Judge Chang, I truly fear that he will be biased in any decision that he may render, and that any unfair decision in this case could have a detrimental effect on any future settlement negotiations that might take place regarding the unsettled claims described above.
The United States Constitution guarantees an unbiased Judge who will always provide litigants with full protection of ALL RIGHTS, including the rights of free speech and to a public trial by jury. Therefore, Petitioner respectfully demands that Judge Kevin Chang be recused in this case in light of the evidence that there exists material conflicts of interest, which gives Petitioner good reason to believe that he cannot hear the referenced case in a fair and impartial manner.
DATED: --------- , KENTUCKY, August 7, 2006
_____________________________________
BOBBY NORRIS HARMON,
Defendant, Pro Se
Internet References:
www.kycbs.net/CV05-00030-OUST-vs-Harmon.htm
www.kycbs.net/Coopers-Lybrand-11-20-96.htm
www.kycbs.net/SINNOTT-1-5-97.htm
www.kycbs.net/KSBE-vs-BNH-Goemans-Free-Speech.pdf
http://starbulletin.com/1999/09/03/news/story11.html
www.kycbs.net/BH-CHRON-88-96.htm
www.kycbs.net/BH-CHRON-97-99.htm
www.kycbs.net/BH-Settlement-Chronology.htm
www.kycbs.net/InsuranceCommissioners.htm
www.kycbs.net/EQ2048-AG-Trustees-4-27-0.pdf
http://starbulletin.com/2000/05/18/news/story1.html
www.kycbs.net/Doc-EQ2048-AG-Witnesses-5-19-0.pdf
www.kycbs.net/Claim-IRS-10-10-0.htm
www.kycbs.net/Harmon-Trustees.htm
www.kycbs.net/CV05-00030-Guttman-8-6-5.htm
www.kycbs.net/Broken-Trust-Book.htm
www.kycbs.net/Lost-Generations.htm
www.kycbs.net/Freedom-To-Sing.htm
www.kycbs.net/GoldmanSachs.htm
www.kycbs.net/McCubbin-MorganLewis.htm
www.kycbs.net/NatureConservancy.htm
www.kycbs.net/PunaConnection.htm
www.kycbs.net/SandwichIsles.htm
www.kycbs.net/Summit-Communications.htm