David C. Farmer, Successor-Trustee vs. Harmon

(Formerly Woo vs. Harmon & Nicholson vs. Harmon)

CV05-00030 DAE KSC

U.S. District Court For the District of Hawaii

Judges: David A. Ezra; Kevin S. Chang



Born Honolulu, Hawaii, November 11, 1947; admitted to bar, 1972, Hawaii and U.S. District Court, District of Hawaii; Senior Associate Justice, Hawaii Supreme Court, 1992-2000; Circuit Court Judge - Criminal Trials, Tax Court, Land Court, Motions, Administrative Appeals and Probate Court, 1984-1992; District Court Judge, 1978-1984; Complaints Officer, Department of Regulatory Agencies, 1975-1978; Executive Director, State Campaign Spending Commission, 1974; Deputy Attorney General, Anti-Trust Division, 1973; graduate of Punahou School.

McCorriston Miller Mukai MacKinnon
Five Waterfront Plaza, 4th Floor
500 Ala Moana Blvd.
Honolulu, HI 96813

Website: www.m4law.com

Fax: 808-524-8293

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September 4, 1997

Hawaii’s World

By A.A. Smyser

Advisory panel voted
8-3 against Waihee

NOW it can be told. A special vacancy review committee appointed Jan. 13, 1994, to help the justices of the state Supreme Court choose a new trustee for the Kamehameha Schools/Bishop Estate voted 8-3 against including then-Gov. John Waihee among their five recommendees.

Union leader Gary Rodrigues and attorney Alvin Shim spoke up strongly for Waihee but he got only three votes on a secret ballot. The third vote may have been that of William Richardson, a former trustee and former chief justice. Richardson wanted to add the name of his son-in-law, a lawyer in Canada, as a sixth recommendation. That, too, went down by 8-3 on a secret vote. Other decisions were by consensus.

These actions are confirmed by both Gladys Brandt and Msgr. Charles Kekumano, committee members who now are among the five authors of "Broken Trust," which details apparently collusive efforts to put KS/BE under what amounts to old-fashioned spoils system political control.

The panel wound up recommending Michael Chun, Kamehameha Schools president; Nathan Aipa, general counsel to KS/BE; J. Douglas Ing, attorney; Dwayne Steele, businessman; and state Rep. Bertha Kawakami.

Group by group panelists read 146 applications and put them in three categories -- no-maybe-yes -- to take to discussions of the full committee, held at least weekly at the board room of the United Public Workers, headed by Rodrigues. Businessman Henry A. Walker, a committee member, volunteered his Amfac building office and secretary to receive the applications and make them available to committee members to inspect.

Brandt chaired the review committee. Other members besides her, Kekumano, Rodrigues, Shim, Richardson and Walker were the late Herbert Cornuelle, former board chairman of Campbell Estate; Robert Pfeiffer, retired CEO of Alexander & Baldwin; Melody MacKenzie, attorney and Hawaiian rights advocate; Kenneth Mortimer, University of Hawaii president; and Matsuo Takabuki, another former KS/BE trustee.

None of the five people recommended by the panel to the justices on March 18, 1994, was appointed. Brandt got the impression when she presented the names that they were dismayed Waihee was not on the list but they dispute this.

Nevertheless Waihee's name hung over the entire 1994 selection proceeding. After he formally announced in August that he would not accept while governor the justices added 10 more finalists on their own, then chose Gerard Jervis, a business associate of Waihee. "Broken Trust" authors say Jervis as a judicial selection commissioner had helped Waihee get Justice Robert Klein on the court, even though Klein had missed the first list of recommendees.

Court members by 1994 were all Waihee-nominated.Rumors started that (1) Waihee would "be taken care of" with large KS/BE legal contracts awarded his private law practice after leaving the governorship and (2) that Jervis might resign in a year or two to make room for Waihee.

Rumor No. 1 has panned out with hundreds of thousands of dollars of KS/BE fees already reported paid to Waihee's law firm and more hundreds of thousands said to be in the pipeline.

Rumor No. 2 hasn't panned out but Waihee told me in August 1994 he might be interested in any vacancy developing 18 months or two years after he left office in December. No regular terms expire until 2001.

IN voting against Waihee for KS/BE, Brandt and Kekumano recognized Waihee as having done great things for Hawaiians but didn't want him on a board on which the justices already had placed a former House speaker and former Senate president for long terms.

They feared what they now are asserting in "Broken Trust" -- that our biggest, most important private trust in Hawaii would be placed under spoils system control.

I have written columns comparing Waihee to Prince Kuhio in his work for Hawaiians. But I also wrote some to the effect that in his governorship the tendency under Governors Burns and Ariyoshi to "help your friends, all else being equal" often seemed shortened to "help your friends."


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'Hawaiians-Only' Lawsuit Thrown Out

Judge: Plaintiff Has No Right To File Suit

HONOLULU -- U.S. District Judge David Ezra dismissed a lawsuit challenging the constitutionality of state-run Hawaiians-only programs Thursday, saying that the man who filed the lawsuit has no legal standing to file the complaint.

Moiliili resident Patrick Barrett challenged his being denied access to the Hawaiian Homelands program and other Hawaiian programs as unconstitutional racial discrimination.

In regards to the Hawaiian Homelands program, Ezra noted that because Congress created the Hawaiian ancestry requirement, the lawsuit wasn't valid because the U.S. Government was not named as a defendant.

"He accepted our argument that the United States needed to be a party to the lawsuit, and the United States hadn't been sued," Department of Hawaiian Homelands attorney Robert Klein said.

The lawsuit also challenged business loans made by the Office of Hawaiian Affairs to people of Hawaiian ancestry. But Ezra ruled that Barrett had no legal standing because he wasn't serious about getting an OHA loan.

"He didn't take any steps including completing an application before he filed a lawsuit," OHA attorney Sherry Broder said. "So the court ruled he didn't have a real case or controversy."

Ezra also ruled that Barrett, who is considered disabled by the Social Security Administration, was not serious about challenging Native Hawaiian gathering rights."

"It's a good day," OHA chairwoman Haunani Apoliona said. "Of course we're realists and pragmatists knowing that anyone else can file another lawsuit."

Ezra pointed out that his ruling on the motion to dismiss Barrett's lawsuit had nothing to do with the merits of the case, only his legal standing to file a complaint.

Barrett's attorney said that he would appeal the decision and possibly re-file the lawsuit with additional plaintiffs.

"This issue is not going to go away and neither are we," Barrett's attorney, Patrick Hanifin said.

"I can certainly say we are prepared to defend the case on the merits," Broder responded. "The history of Native Hawaiian people is exactly the same as the history of other native people. And there's no reason why Native Hawaiians shouldn't be treated the same as Navajos who have reservations and have trust funds."


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Robert Klein is expected to testify regarding his business, professional and personal relationships with Kamehameha Schools/Bishop Estate; William S. Richardson; Nathan Aipa; Colleen Wong; Louanne Kam; Hamilton McCubbin; Gary Rodrigues; William A. McCorriston; Jon Miho; David Fairbanks; Office of Hawaiian Affairs (OHA); Clayton Hee; John Waihee III; John Waihee IV; Larry Mehau; Haunani Apoliona; Oswald Stender; Robert K.U. Kihune; Gilbert Tam; Sandwich Isles Communications; Summit Communications; Steven Guttman; John Goemans; Judge Samuel King; Randall Roth; Ed Case; Kitty Lagareta, Hill & Knowlton, Mark Recktenwald, Mark Bennett, Ron Rewald, James Nicholson, David Farmer, Judge David Ezra, Sherry Broder, James Cribley, Daniel Case, Department of Hawaiian Home Lands, Melody MacKenzie, and others to be named upon discovery.

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