U S Dept of Justice, David C. Farmer, Trustee vs. Harmon

THE UNITED STATES DEPARTMENT OF JUSTICE

OFFICE OF THE U.S. TRUSTEE

David C. Farmer, Successor Trustee
vs.
Bobby N. Harmon

(Formerly Mary Lou Woo vs. Harmon and James Nicholson vs. Harmon)

CV05-00030 DAE/KSC

United States District Court, District of Hawaii

Judges: David A. Ezra; Kevin S. Chang

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DEFENDANT’S WITNESS

RANDALL ROTH, PhD.

Professor, William S. Richardson School of Law, University of Hawaii; named as an Expert Witness in EQ2048; co-author (with Judge Samuel P. King) of the book Broken Trust: Greed, Mismanagement, and Political Manipulation at America’s Largest Charitable Trust.

Address to be determined.

Website: www.brokentrustbook.com

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“… a breath-taking panoramic view, not only of the post-contact history of Hawaii, but also an intimate portrait of the birth, development, and travails of the world’s wealthiest charitable trust…. an inspiring universal story of corruption and hubris, personal courage and integrity, civic responsibility, and cautious hope for an informed community committed to democratic process and ideals.”

-David Farmer, Hawaii Bar Journal, July 2006

http://www.brokentrustbook.com/quotes.html

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NEW DISCOVERY (12-22-09): More evidence of bias and undisclosed conflicts of interest of Judge Eden Elizabeth Hifo (fka Bambi Weil) with Gov. John Waihee, Judge William S. Richardson, Judge Colleen Hirai, Judge Kevin Chang, Judge David Ezra, etc:

JUDGES HIFO, HIRAI TO STEP DOWN

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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"

http://www.hawaiireporter.com/list.aspx?Now+in+Hawaii

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GOOGLING FOR RANDALL ROTH, PhD.

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Professor Randall Roth is expected to testify regarding his public statements in the “Broken Trust” Forum held on July 5, 2006, as reported in Small Business News, and excerpted as follows:

'Broken Trust' Forum Calls for
Release of Corruption Documents

By Malia Zimmerman

HawaiiReporter.com

The full story of the corruption that permeated Hawaii's $10 billion charitable trust, the Kamehameha Schools/Bishop Estate, to the highest levels of government in Hawaii, has never been told.

But the information that has become public is categorized by 60 Minutes as "The biggest story in Hawaii since Pearl Harbor;" by The New York Times as "A feudal empire so vast that it could never be assembled in the modern world;" and by Howard M. McCue III, the Chairman of the Charitable Planning Committee for the American College of Trust and Estate Counsel, as "The most significant legal dispute of our time ... a tale of unbridled ambition, infectious greed, and high drama...."

This saga, involving Bishop Estate trustees, state Supreme Court justices, a former governor and leaders in the Hawaii State Legislature, peaked in 1997.

However, nearly one decade later, critics say there has been no accountability for the many influential people who wrongfully took advantage of Princess Pauahi Bishop's charitable trust - a trust she established in 1884 to fund the education of Hawaiian children, not to fatten the pockets of politicians and trustees.

University of Hawaii Law Professor Randall Roth and U.S. Federal Judge Samuel King, co-authors of a newly published book, Broken Trust: Greed, Mismanagement and Political Manipulation at America's Largest Charitable Trust, documented the story of the trust from its inception 100 years ago through current times.

At a July 5 forum hosted by Small Business Hawaii, and moderated by Hawaii Reporter, Roth and King shared their thoughts on what led to the extensive problems at the Bishop Estate and what still needs to be done to ensure there is justice and accountability for past wrongdoings.

Joining them were four other prominent Hawaii citizens who played a major role in pushing for reforms including Hawaiian attorney Beadie Dawson, former Honolulu Star-Bulletin Managing Editor Dave Shapiro, former Campaign Spending Director Robert Watada and Congressman Ed Case....

Before the 90-minute panel wrapped up, the panelists shared some of the following insights from their experiences:

Congressman Case was a freshman state legislator in 1995 when he tried to make two major reforms related to the Bishop Estate - take the Supreme Court justices out of the trustee selection process and limit trustee compensation to what was “reasonable” - both of which made him forceful enemies within the legislative leadership, the court and the Bishop Estate.

“I got nailed pretty bad,” Case says of his first attempt in 1995.

The Hawaii Supreme Court justices admitted that they were split on whether they should be in the business of appointing trustees because of perception of cronyism and favoritism.

In 1997, Roth, King and three other well-respected Hawaiians signed their name to a compelling essay entitled “Broken Trust” that documented the power, influence and wrongdoing in the highest levels of the Bishop Estate and the Hawaii government.

Shapiro, then the managing editor of the Honolulu Star-Bulletin, published the oped, which rocked the very core of the Hawaiian, political and legal communities.

That was the final catalyst for all but one justice - Robert Klein (now an attorney/lobbyist for the Office of Hawaiian Affairs) - to voluntarily step aside from the duty.

Case’s bill to limit trustee compensation also passed, despite major obstacles. At the time, trustees were making more than $1 million a year.

The House, which had Bishop Estate-backed leadership, including House Speaker Joe Souki, and Reps. Terrance Tom and Calvin Say, agreed to a bill that would study the issue. But the Senate sides with Case in establishing compensation limits. In a highly unusual move, Case moved to suspend the rules and adopt the Senate version. Because of extensive pressure from the Hawaiian comunity, the media and the public, the House agreed to the bill by a vote of 50 to 1 with Rep. Say (who is presently the House Speaker) as the one dissenting vote.

Now, as a Congressman for the second district who is running for U.S. Senate against Sen. Daniel Akaka, Case has distinguished himself from his opponent on this issue. Akaka was sympathetic with the ousted trustees, while Case pushed for more accountability and less compensation. Today, Case says there are still “broken trusts” in Hawaii, which need to be addressed....

A great deal of the information Roth and co-author Judge King used to write the Broken Trust was given to them by Watada, the director at the time of the state Campaign Spending Commission.

But Roth says there are still between 1 million and 2 million more documents sealed by the courts that he wants to review and catalogue and believes should be made public.

He hopes trustees will some day be held accountable for their mismanagement. But that is unlikely: they did not pay legal fees for the most part, they took millions of dollars for themselves, they paid off political cronies with trust funds, and held what Roth calls a "world record for breaches of trust."

Roth and King maintain the Broken Trust saga is not over, and neither are the problems for Kamehameha Schools if further safeguards and reforms are not implemented....

< END OF QUOTATION >

Professor Roth is also expected to testify regarding his legal views on whether Judge Kevin Chang should have sealed the records in EQ2048. These are some of the records that Defendant has asked to be subpoenaed in the instant case (See: Documents To Be Subpoenaed)

As a professor of law, Randy Roth is also expected to testify regarding the Defendant’s First Amendment Rights of Freedom of Speech and Freedom of Religion. In particular, this witness is expected to testify regarding Defendant’s First Amendment Rights with respect to his “letter-writing campaign” to the U.S. Attorney General’s office, the Hawaii Attorney General, the Hawaii Insurance Commissioner, the IRS, the FBI, and others - which often included copies of these letters being sent to Dr. Roth.

Dr. Randall Roth is also expected to testify regarding his personal and professional relationships with Defendant, Kamehameha Schools/Bishop Estate, Colbert Matsumoto, Walter Heen, Judge Samuel King, Ed Case, Beadie Dawson, Margery Bronster, Earl Anzai, Lyn Anzai, Nathan Aipa, Judge Kevin Chang, Judge Eden Elizabeth Hifo, Judge Patrick Yim, Miller & Chevalier, Morgan Lewis & Bockius, Carol Muranaka, Judge Barry Kurren, Judge David Ezra, Linda Lingle, David C. Farmer, and others to be named upon discovery.