James B. Nicholson, Trustee vs. Harmon
(Formerly Woo vs. Harmon)
CV05-00030 DAE KSC
U.S. District Court For the District of Hawaii
Judges: David A. Ezra; Kevin S. Chang
HEARING ON MOTION FOR CONTEMPT OF COURT
DATE: January 16, 2007, 10:30 AM
JUDGE: Hon. David Ezra
JANET S. HUGHES
Manager, Internal Revenue Service; recipient of letters in Harmon’s alleged “letter-writing campaign” which Kamehameha Schools/Bishop Estate, P&C Insurance Company, and Trustee Mary Lou Woo claim breached the terms of the “Settlement Agreement”.
Internal Revenue Service
1244 Speer Blvd., Ste 442
Denver, CO 80204-3583
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NEW DISCOVERY (02-09-08): Kamehameha Schools made a “confidential” settlement agreement with the plaintiff in the John Doe vs. Kamehameha Schools case, which my former attorney, John Goemans, Esq., says, according to what he has learned from the IRS, violates the rules for a non-profit charitable trust:
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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.
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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.
Reach Jim Dooley at firstname.lastname@example.org.
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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, email@example.com
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."
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Janet Hughes is expected to testify as to the facts regarding Harmon’s testimony relating to the IRS audits of Kamehameha Schools Bishop Estate and P&C Insurance, “arms-length” issues, violations of IRS Section 4958 regulations, and whether Defendant’s reports of tax fraud to the IRS should be considered part of a “letter-writing campaign” in violation of the Settlement Agreement. Janet Hughes is also expected to testify regarding her professional relationships with the former, interim and current trustees of Kamehameha Schools, Nathan Aipa, Colleen Wong, Louanne Kam, Gilbert Ishikawa, Mark McConaghy, PricewaterhouseCoopers, Gilbert Tam, Rodney Park, Wally Chin, Colbert Matsumoto, Benjamin Matsubara, Hamilton McCubbin, Dee Jay Mailer, P&C Insurance Company, William S. Richardson, Clyde Mark, Christine Lee, Rocco Sansone, Peter Lowe, Edwina Clarke, Judge Kevin Chang, Judge David Ezra, Judge Eden Elizabeth Hifo (fna Bambi Weil), Jon Van Dyke, Sherry Broder, William McCorriston, Carolyn Woods, John Waihee, Ben Cayetano, Margery Bronster, Earl Anzai, Lyn Anzai, Carol Muranaka, Randall Roth, Judge Samuel King, and others to be named upon discovery.
Documents, News Articles and Related Links
IRS - PricewaterhouseCoopers, Arm’s Length and Intermediate Sanctions
IRS - Closing Agreement for Kamehameha Schools
First Amendment Rights/Obstruction of Justice
Hawaii Dept. of Labor - CV 98-2394-05 - Unemployment Insurance Appeal
Equity 2048 -The Richards Report
Pages 1-26; Pages 26-49; Pages 50-75; Exhibit 2; Exhibit 2b
XL Reinsurance Policy No. XLRKS-01796
Equity 2048 - Related Correspondence and Documents
The Na Kumu Book Advisory Group
Broken Trust - The Book
KITV Special Report