David C. Farmer, Successor-Trustee vs. Harmon
(Formerly Woo vs. Harmon & Nicholson vs. Harmon)
U.S. District Court For the District of Hawaii
Judges: David A. Ezra; Kevin S. Chang
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DEFENDANT’S WITNESS
JUDGE KAREN RADIUS
Address to be determined.
Judge Karen Radius is the Oahu Family Court Judge who Ordered the Injunction and the return of ALL documents to Bishop Estate related to Defendant’s employment by that entity.
Chronology
02/07/97
P&C and Trustees of the Estate of Bernice Pauahi Bishop filed Civil No. 97-0512-02 against BH in the First Circuit Court, State of Hawaii....
02/08/97
BH tendered defense of this lawsuit to Michael Goolsby, Chubb Group, stating in part:
“...I am hereby tendering this claim to the Federal Insurance Company (Chubb Group) under the terms of its Directors & Officers and Association Liability policies issued to Kamehameha Schools Bishop Estate (KSBE) and P&C Insurance Company, Inc. . . . This lawsuit arises out of my employment as an employee of KSBE, and as an officer or P&C. As an insured person under the above policies, I am requesting that your company provides defense for this lawsuit. . . I understand an answer to the complaint is due withing twenty days of service. As I have not yet selected an attorney, I would appreciate your immediate response and recommendations. . .”
02/15/97
P&C and KSBE filed a Motion for Preliminary Injunction and Notice of Hearing of Motion. The Hearing of Motion was scheduled for February 18, 1997.
02/15/97
BH sent a letter by fax and mail to Goolsby: “This is to advise that I was served at 8:10 a.m., Saturday, Feb. 15, 1997 with PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION and NOTICE OF HEARING OF MOTION. . . The hearing is scheduled for this Tuesday, Feb. 18, 1997 at 1:30 p.m. As I have not had a response to my tender letter to you dated Feb. 8, 1997, or a return of my phone calls to your office, and as Monday, February 17th is a holiday, I am very concerned that this hearing may be held before I have the time and opportunity to obtain adequate and proper legal advice. . . . As I stated in my tender letter of February 8, 1997, I have not yet selected or retained an attorney. I have been awaiting Chubb’s response and advice before taking this action as I am unaware if the company intends to appoint an attorney of its choosing, or if I am to be permitted to select the attorney, subject to your approval.”
Federal did not respond to Harmon’s letter in time for Plaintiff to comply with the terms of the insurance policy which states in § 1.3: “The Company shall have the right and duty to defend any suit to which the insurance applies. . . No Defense Costs shall be incurred or settlements made without the Company’s consent, which shall not be unreasonably withheld. The Company shall not be liable hereunder with respect to any settlement or Defense Costs to which it has not consented.”
02/15/97
As Harmon did not receive a timely response from Chubb, he had no choice but to seek out an attorney on his own. Under duress and time constraints, Harmon retained John Marshall, Esq. at to represent him at the scheduled hearing of KSBE’s Motion for Preliminary Injunction. Federal’s failure to respond in a timely manner to Harmon resulted in the incurring of legal costs which could not be recovered under the terms of the policy, and constituted an act of bad faith.
02/18/97
Harmon, through his then-attorney, John Marshall, Esq., filed an Answer to Verified Complaint filed on 2/7/97, and a Counterclaim, alleging and averring, in part:
“. . . 2. Counterclaim Defendants P&C INSURANCE COMPANY, INC. (hereinafter “P&C”) and/or RICHARD S.H. WONG, OSWALD K. STENDER, LOKELANI LINDSEY, GERARD A. JERVIS and HENRY H. PETERS, as TRUSTEES OF THE ESTATE OF BERNICE PAUAHI BISHOP (hereinafter sometimes collectively referred to as “Bishop Estate”) were during the relevant period the employer(s) of Counterclaimant.
3. While so employed, Counterclaimant witnessed and refused to participate in or acquiesce to acts and practices by the Counterclaim Defendants which were in violation of Federal and/or State of Hawaii laws and/or regulations and/or rules.
4. As a result of Counterclaimant’s refusal to participate in or acquiesce to said acts and practices, as well as because the Counterclaim Defendants believed that Counterclaimant had reported and/or was about to report said acts and/or practices to governmental authorities, Counterclaim Defendants wrongfully terminated Counterclaimant.
5. Counterclaim Defendants’ conduct and wrongful termination of Counterclaimant violated clear mandates of public policy.
6. Counterclaim Defendants’ conduct and wrongful termination of Counterclaimant violated the Hawaii Whistleblowers’ Protection Act, set forth in Hawaii Revised Statutes Chapter 378, such that he is entitled to, amongst other things, injunctive relief, actual damages, reinstatement, back wages, reasonable attorneys’ fees and/or costs of suit.
7. Counterclaim Defendants’ conduct and wrongful termination of Counterclaimant constitutes a breach of contract.
8. Counterclaim Defendants’ conduct and wrongful termination of Counterclaimant constitutes a tortious breach of contract.
9. Counterclaim Defendants’ conduct and wrongful termination of Counterclaimant constitutes a violation of HRS Chapter 480, for which Counterclaimants are liable to pay treble damages and reasonable attorneys’ fees, together with costs of suit.
10. Counterclaim Defendants’ conduct caused Counterclaimant serious mental distress and anguish; and constitutes the negligent and/or intentional infliction of emotional distress upon Counterclaimant.
11. As a result of Counterclaim Defendants’ above-described acts, practices and wrongful termination, Counterclaimant has sustained injury and/or damages.
12. Counterclaimant is entitled to general, special, consequential and/or incidental damages in such amounts as shall be proven at the time of trial.
13. Counterclaim Defendants’ conduct was wilful and wanton, so as to warrant the imposition of punitive damages.
14. Counterclaim Defendants are the alter-egos of each other and are in such a controlled relationship with one another that they should be treated as one and the same entity under the law and the fiction of their separate existences should be disregarded such that they are each liable for the debts and obligations of the other.
WHEREFORE, Counterclaimant prays for judgment against the Counterclaim Defendants, and each of them, for compensatory damages in such amounts as may be proven at the time of trial, together with treble and/or punitive damages, attorneys’ fees and costs, and such other relief as is provided by the statutes referenced and/or is just in these premises.”
02/19/97
Hearing was held on P&C/KSBE’s Motion for Preliminary Injunction, before Judge Karen M. Radius. Appearing at the hearing were Aipa, Katz and Tsukazaki for Plaintiffs, and Harmon and Marshall for Defendant. A written statement prepared by Plaintiff’s attorney, John Marshall, to be presented orally to Judge Radius at the hearing, made the following points:
“Your Honor, it is important to know why these documents are such a bone of contention.
- On 11/20/96, Mr. Harmon was terminated from his job as the president of Bishop Estate’s captive insurance company, P&C. Although it is a wholly owned subsidiary, it is supposed to have a separate corporate existence.
- And, Bishop Estate knows that if it doesn’t maintain an ‘arms length’ with this profit-making subsidiary, then it has implications for its non-profit tax-free status.
- Mr. Harmon has documents which show, amongst other things, that Bishop Estate did not maintain an ‘arms-length’ relationship and that Mr. Harmon wasn’t going along with it. Said another way, there may have been, and continue to be, some tax fraud afoot and Mr. Harmon got in the way of it.
- Yesterday, Mr. Harmon filed a Counterclaim against Bishop Estate claiming a Parnar-public policy type wrongful termination, and that Bishop Estate violated the Hawaii Whistleblower Statute.
- Mr. Harmon believes that if he didn’t have these documents, there is some chance that they won’t still be in existence when he requests them in discovery.
- When Bishop Estate’s papers herein say that Mr. Harmon said he might be providing the documents to third-parties, I believe the facts will show that two of those parties were the Internal Revenue Service and the Justice Department.”
www.the-catbird-seat.net/BH-CHRON-97-99.htm
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August 25, 2002
Isle divorces can be kept
hush hush — for a price
By Rob Perez, Star-Bulletin
A year ago the wife of University of Hawaii football coach June Jones filed a lawsuit seeking a legal separation from her husband and custody of their children.
A few years before that, Al and April Masini, the wealthy high-society couple of Hawaii's television industry, went to court to get a divorce.
More than a decade before that, the wife of prominent Honolulu attorney David Schutter filed a lawsuit seeking to end their marriage.
Besides the celebrity factor, all three cases have something in common.
They have since been sealed by the court.
That means not only are they confidential but that all public evidence of their existence has basically been wiped out.
Check the court's public-records computer and online system and you get zilch.
You can't find out when the cases were filed.
You can't find out what happened to them.
You can't even get a file number or names of the parties involved, the most basic information in a court document.
It's as if the cases never existed, with the court removing all identifying markers from the public-access system.
Just trying to find out whether a divorce was granted -- usually routine public information -- requires submitting a special request to the judge in these super-secret cases.
The request, of course, can be denied.
Yet the records in Hawaii's other divorce cases, thousands of them typically involving the state's less prominent and less wealthy, are open for the world to see, warts and all.
Experts here and on the mainland called the court's leave-no-trace-behind policy astonishing, though at least a few other states, including California, engage in the practice.
"It sounds unbelievable," University of Hawaii law professor Randy Roth said. "I think it's a terrible idea."
Despite the fact that the practice is seldom used in Hawaii, it benefits mostly the wealthy, who often don't want others to know the extent of their riches or don't want business competitors to learn trade secrets or other sensitive information.
"A lot of these people have big money and don't want people to know how big it is," said Brad Coates, senior partner for Coates & Frey, Hawaii's largest family law firm.
For simple divorces, lawyers may charge only a few hundred dollars to file a motion requesting super-secret status, but the cost typically rises with the complexity of the case.
The folks who aren't wealthy often lack or are reluctant to spend the money to seek confidentiality or care little about such secrecy.
"Not everybody has the horsepower to file these motions," Coates said.
As a result, such practices tend to underscore the common perception that the rich and powerful have a separate system of justice, one that most people don't have equal access to.
"That's a legitimate concern," said Tom Stirling, who has practiced family law for more than 30 years in Hawaii.
There are also concerns that court rules may be more loosely applied if a case is sealed or that a judge may demonstrate favoritism toward one party. After all, no one from the outside can monitor what goes on under seal, although any decision of the judge can be reviewed later on appeal if abuse is suspected.
Houston attorney J. Lindsey Short, president of the American Academy of Matrimonial Lawyers, said in his 35 years of practicing family law, he's never heard of a sealed divorce case being completely stricken from the public record.
"That's very wrong," Short said. "I can't imagine that practice becoming a trend in any way, shape or form anywhere in this country."
Donald Schiller, former chairman of the American Bar Association's family law section and head of the nation's largest matrimonial law firm, Chicago-based Schiller DuCanto and Fleck, said there are legitimate reasons for sealing cases, particularly with increasing concerns today about personal safety, identity theft and the like.
Divorce records typically contain Social Security numbers, home addresses, bank account data and other sensitive information that, in the wrong hands, can be used to cause harm.
But Schiller, like other experts, said there are ways to safeguard sensitive information without completely shutting out the public. "To just take the case out of the system seems to go beyond appropriate protections," he said.
Marsha Kitagawa, a Hawaii State Judiciary spokeswoman, said divorce cases here are rarely sealed. Only four of 5,647 filed statewide in the 12-month period through June were sealed.
Kitagawa said the Judiciary strives to achieve an equitable balance between providing public access to records and safeguarding citizens' privacy and safety.
"Generally court records, including divorces, are presumed to be open to the public," she said in a written statement. "However, neither Hawaii state statutes nor our constitution guarantee open access to all court records."
Case numbers and parties' names in all sealed files and cases that are confidential by law, such as adoptions, are not available on the Judiciary's public-access database system, Kitagawa said. "This is a long-standing practice based on a decision to 'err on the side of caution' in dealing with the advent of instant and widespread electronic access to court records," she wrote.
Judges have substantial discretion in deciding whether to seal a case. They could seal all of it, part of it or nothing at all. At the hearings to debate such matters, though, no one typically is there to argue the public's right to know.
Unlike the practice in many other states, divorce proceedings here, even for cases that aren't sealed, are closed to the public, personnel tell people at the Honolulu Family Court, where hearings are held. The court administration, however, told the Star-Bulletin that proceedings aren't closed to the public but noted that the courtrooms are small.
In the Jones, Masini and Schutter cases, the Star-Bulletin couldn't determine the reasons those files were sealed because, like everything else in them, the judges' orders were not part of the public record.
Jones, the lawyer for Diane K. Jones and a representative for Schutter did not respond to requests for comment, and Al Masini could not be reached.
April Masini said she didn't know the reasons cited for sealing her case. While noting her marriage to Al Masini ended amicably, she said, "Our divorce and its terms had nothing whatsoever to do with anyone else and is absolutely no one else's business."
Given the wide discretion Family Court judges have, some cases have been sealed primarily because a spouse was a high-profile member of the community, several lawyers said.
But Kitagawa disputed that notion. "Judicial determinations on whether an individual's safety and right to privacy outweighs the public's right to know are made on a case-by-case basis based upon the arguments and evidence presented by the parties and not upon the parties' income or celebrity," she said.
Almost all the Hawaii divorce attorneys contacted for this column said they were unaware of the court's purge-the-public-record policy until questioned by the Star-Bulletin. Some said they couldn't think of any legitimate reason to justify the policy.
P. Gregory Frey, chairman of the Hawaii State Bar Association's family law section, said he plans to look into how the practice came about and whether it can be changed.
Kitagawa said the Judiciary currently is working on a proposed policy governing public access to paper and electronic records. The public will be invited to comment once the draft policy is developed, she said.
In this regard, though, the Judiciary's charge already should be clear. It should rescind any policy that completely removes divorce cases from the public record. At the least, the public should have access to basic information, just like they do in most states.
And to address safety and identity-theft concerns, sensitive data should be sealed automatically in all divorce cases. It shouldn't matter whether one is rich or poor to benefit from such basic protections.
http://starbulletin.com/2002/08/25/news/perez.html
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Judge Karen Radius is expected to testify as to the reason why she - a family court judge - was selected to hear this case when it had no relationship with a family court matter.
Judge Karen Radius is also expected to testify why Defendant was NOT GIVEN REASONABLE LEGAL NOTICE of the Hearing scheduled for February 18, 1997.
Judge Karen Radius is expected to testify regarding her business, professional, political and personal relationships with William S. Richardson, Henry Peters, Richard Wong, Nathan Aipa, Colleen Wong, Louanne Kam, Milton Holt, Colbert Matsumoto, John Waihee, Earl Anzai, Lyn Anzai, David Schutter, Audrey Kitagawa (divorce attorney for David Schutter), Marsha Kitagawa, Mary Lou Woo, Steven Guttman, Randy Roth, June Jones, and others to be named upon discovery.
Internet References:
Documents, Letters, News Articles and Related Links
www.kycbs.net/BH-CHRON-97-99.htm
www.kycbs.net/BK-Objection-1-19-5.htm
www.kycbs.net/Broken-Trust-Book.htm
www.kycbs.net/BuzzardsOfParadise.htm
www.kycbs.net/Freedom-To-Sing.htm
www.kycbs.net/HarmonArbitration.htm
http://starbulletin.com/2002/08/25/news/perez.html
http://starbulletin.com/2006/03/12/editorial/special.html
www.angelfire.com/realm3/extrastuff/HarmonArbitration.htm
www.kycbs.net/CV05-00030-Answer.htm
TO GO TO THE WOO VS. HARMON WITNESS INDEX
www.ksbe.net/CV05-00030-Witness-Index.htm