Farmer vs. Harmon - Witness David Schulmeister

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

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DEFENDANT’S WITNESS

DAVID SCHULMEISTER

Firm: Cades Schutte

1000 Bishop Street
Suite 1200
Honolulu, HI 96813

Phone: (808) 521-9392

Fax: (808) 540-5022

David Schulmeister is an attorney for Kamehameha Schools in the John and Jane Doe vs. Kamehameha Schools case.

www.lawyers.com/Hawaii/Honolulu/Cades-Schutte-890428-f.html

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NEW DISCOVERY (04-25-08): Undisclosed relationships between Mary Lou Woo, James B. Nicholson, David C. Farmer, Steven Guttman, Judith Neustadter Fuqua, Paul Alston, David Schulmeister, Judge Lloyd King, Judge Robert Faris, Judge Kevin Chang, Judge David Ezra, Judge Barry Kurren, Judge Elizabeth Eden Hifo, Dee Jay Mailer, Eric Grant, Jim Dooley, and other witnesses; denial of First Amendment and Seventh Amendment Rights to Defendant and his prior attorney, John Goemans:

April 24, 2008

Kamehameha wants $2 million returned

School points to breach in terms of
confidential settlement paid in 2007

By Jim Dooley, Advertiser Staff Writer

Kamehameha Schools is trying to get back as much as $2 million of the $7 million it paid last year to settle a lawsuit that challenged its admissions policy favoring Hawaiian students, according to legal papers filed in federal court in California.

The papers are contained in new litigation filed after publication of an Advertiser news story in February that revealed that the settlement was $7 million.

The money was paid to a Big Island mother and child in return for their agreement to drop the lawsuit just before the U.S. Supreme Court was to decide whether it would hear an appeal of the case.

The plaintiffs, who have never been publicly identified and are known as Jane and John Doe, alleged in the California case that the schools "threatened" to publicly identify them if they did not place $2 million in an escrow account for possible return to the schools because terms of the confidential settlement had been revealed.

Ken Kuniyuki, a Hawai'i lawyer who now represents the pair, is alleging that David Schulmeister, an attorney for the schools, said that if the schools were forced to file suit over the issue, the names of the Does would become public.

Kuniyuki made the allegation in a sworn declaration filed this month in federal court in Sacramento, seeking a court order barring public identification of the plaintiffs.

Schools attorney Paul Alston denied that Schulmeister threatened to reveal the plaintiff's identities.

"Schulmeister told Kuniyuki that the (Kamehameha Schools/ Bishop Estate) believed the settlement agreement had been breached and that the estate was entitled to damages," Alston said in court papers filed April 14 in Sacramento.

"He further explained that a public lawsuit could make it difficult for the Does' anonymity to be preserved" and suggested that the $2 million be held in escrow while the parties discussed resolution of the dispute short of a lawsuit, according to Alston.

Alston stressed on Tuesday that Kamehameha Schools has not filed a lawsuit or taken any action that would publicly identify the Does.

"Kamehameha Schools is closely scrutinizing how to proceed," he said.

Tuesday night and yesterday, the Kamehameha Schools board of trustees and Chief Executive Dee Jay Mailer sent a mass e-mail to parents and alumni notifying them of the new legal skirmishing in California and alerting them that The Advertiser was preparing a story on the subject.

"A breach of confidentiality has occurred, and an investigation into the line of responsibility is in process. Legal action as appropriate shall follow," the trustees' e-mail said.

"It is aggravating to be drawn into this complicated and unsavory infighting," the trustees' message continued. "However, we will not allow this latest legal maneuver to distract us from our mission."

'Fear for our safety'

Jane and John Doe filed legal papers in Sacramento federal court denying any role in the release of the settlement figure by John Goemans, an attorney who used to represent them but who now is involved in a dispute over compensation for his services in the case.

Their attorney, Kuniyuki, also asked the federal court to issue a restraining order against all parties in the case preventing any attempts to disclose the identities of Jane and John Doe.

He attached an April 2 sworn statement from Jane Doe that said, "both John Doe and I fear for our safety if our identities are made public."

She noted that more than 1,550 reader comments were posted on the Advertiser's Web site following the February story that disclosed the settlement amount.

"Many of them are extremely critical of us. Some include threats of violence against us," she said.

"I have lived in Hawai'i for many years. The negative comments and threats posted to the Honolulu Advertiser's February 8, 2008 article are entirely consistent with my experience with many local residents regarding the admissions policy of the Kamehameha Schools."

If their identities become public, she said, "we are prepared to move and go into hiding."

Last week, following a hearing before U.S. District Judge Frank Damrell Jr., all parties in the federal court case stipulated that they would not disclose the true identities of the Does.

Goemans told The Advertiser in February that he believed the settlement amount should be a matter of public record, given Kamehameha Schools' status as the wealthiest and most influential nonprofit institution in Hawai'i.

Attorney's troubles

In a separate civil case now pending in Sacramento state court, Goemans was sentenced earlier this month to serve eight days in jail and fined $4,000 for violating a court order to keep the settlement amount secret.

Goemans, 73, now living in Florida with his sister, said by telephone, "I have zero money, I have serious health issues, and now I've been ordered to serve an eight-day jail sentence in California in the middle of May. I don't know what's going to happen."

The California state case was filed against Goemans by Eric Grant, a Sacramento attorney who litigated the Does' lawsuit from the time it was first filed in Hawai'i in 2003 through its settlement in May 2007.

Under the terms of the settlement agreement, Grant was entitled to 40 percent of the $7 million total, or $2.8 million.

He sued Goemans in Superior Court in Sacramento last year to try to settle the outstanding question of how much Goemans should be compensated.

Goemans conceived the civil rights lawsuit against the schools, found the plaintiffs on the Big Island and brought them together with Grant.

Goemans said the only money he has received was a $20,000 loan from Jane Doe but believes he is entitled to as much as 25 percent of the total settlement, or $1.75 million.

According to documents filed in the California state case, Grant became concerned early this year that Goemans intended to reveal the amount of the legal settlement and on Feb. 5 obtained a court order against Goemans blocking any such disclosures.

Three days later, The Advertiser published a news story based on Goemans' statements about the settlement amount.

Goemans said in a sworn statement filed with the California court March 17 that he is "not medically or mentally 100 percent" and had no memory of being informed of the Feb. 5 court order.

"I want to emphasize to the court that it was not my intent to deliberately and knowingly violate the court's order," the statement said.

But he reiterated his belief that Kamehameha Schools, as a tax-exempt organization, should not and cannot keep the terms of the settlement confidential.

After the settlement terms were made public, Grant filed a new federal lawsuit March 28 in Sacramento against Kamehameha Schools and his own clients, Jane and John Doe, asking the court for a ruling that he was not responsible for the disclosure and has no financial liability because of it.

Grant and an attorney who represents him did not return telephone requests for comment.

Alston filed a lengthy legal memo in the case last week questioning the Sacramento court's jurisdiction in the matter since the Does and the schools are in Hawai'i.

Reach Jim Dooley at jdooley@honoluluadvertiser.com.

www.kycbs.net/KS-Seeks-Recovery-4-24-8.mht

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441 F.3d 1029

John DOE, a minor, by his mother and next friend, Jane DOE nfr Jane Doe, Plaintiff-Appellant, and
Josephine Helelani Pauahi Rabago, Intervenor,

KAMEHAMEHA SCHOOLS/BERNICE PAUAHI BISHOP ESTATE; Constance Lau, in her capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; Nainoa Thompson, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; Diane J. Plotts, in her capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; Robert K.U. Kihune, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; J. Douglas Ing, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate, Defendants-Appellees.

No. 04-15044.

United States Court of Appeals, Ninth Circuit.

February 22, 2006.

John W. Goemans, Esq., Kamuela, HI, Eric Grant, Esq., Attorney at Law, Sacramento, CA, for Plaintiff-Appellant.

Emmett B. Lewis, Miller & Chevalier, Chartered Metropolitan Square, Washington, DC, David Schulmeister, Esq., Cades, Schutte, Fleming and Wright, Honolulu, HI, Kathleen M. Sullivan, Stanford Law School, Stanford, CA, Jay L. Carlson, Esq., Crystal K. Rose, Esq., Bays, Deaver, Hiatt, Lung & Rose, Honolulu, HI, for Defendants-Appellees.

Before MARY M. SCHROEDER, Chief Judge.

ORDER

Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.

Notes: Judge Clifton is recused

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BIAS COMPLAINTS/MOTION TO RECUSE/JUDICIAL INDEPENDENCE

www.kycbs.net/CV05-00030-Complaint-Chang-5-16-5.htm

www.kycbs.net/CV05-00030-Complaint-Ezra-6-6-5.htm

www.kycbs.net/CV05-00030-Motion-Recuse-Ezra.htm

www.kycbs.net/CV05-00030-Motion-Recuse-Chang.htm

www.kycbs.net/BK-Motion-Recuse-Faris.htm

www.kycbs.net/OUST-Memo-Oppose-8-23-6.pdf

http://www.lwv-hawaii.com/judicial.htm

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March 5, 2008

Benefits of commercial agriculture disputed

Na Wai Eha case users say law requires ‘balance’ of purposes

By HARRY EAGAR, The Maui News

WAILUKU — After three months, 76 witnesses and more than 500 exhibits, the oral portion of the contested case over Na Wai Eha ended Tuesday.

“I think overall this was a very good contested case,” said Dr. Lawrence Miike, the hearings officer. He is also a member of the state Commission on Water Resource Management, which will get his report later this year.

Nevertheless, Miike said, “I fully expect someone will appeal this decision.”

He called it a very complicated case, involving four streams, three kinds of groundwater (basal lens, caprock, high-level dike) and a host of competing interests.

The commission has been mandated to establish instream flow standards for decades but has not been able to establish an accepted standard.

Miike said he did not think the eventual decision on Na Wai Eha would establish a framework.

“We have got to do it stream by stream,” following scientific standards, he said.

The Hawaii Supreme Court, he said, has cleared up a lot of the questions surrounding stream flows by twice remanding the Waiahole Ditch case to the commission — finding the commission’s proposals for stream flows inadequate.

Similarly, the decision on Na Wai Eha — Iao, Waikapu, Waihee and Waiehu streams — surely will not be settled for years.

“We cannot afford to do it this way,” he said, “but resources are never enough.”

By the state Constitution, state law and a series of Hawaii Supreme Court decisions, water is a public resource. Hawaii Revised Statutes 174C-71 requires the commission in judging the “public interest” in use of a surface water resource, include wildlife, recreation and “other beneficial instream uses . . . in light of existing and potential water developments including the economic impact of restriction of such use.”

In Na Wai Eha, the current big users argued for a balancing of interests, while the petitioners — Hui O Na Wai Eha and Maui Tomorrow Foundation — insisted on strict accountability.

Although the final statements were not very precise about how much water should be returned to streams, it was clear that the petitioners — joined by the Office of Hawaiian Affairs and the Department of Water Supply — thought the current big users are entitled to little if any is left for off-stream users.

Miike twice in the last two days reminded the lawyers that the statutes require the commission to take into account the economic impact of off-stream uses.

Attorney Pam Bunn, representing OHA, said in her final statement that the private, for-profit bidders still have to establish that they have a reasonable and beneficial use.

Without that, she said, there is no economic impact. She was joined by Isaac Moriwake of Earthjustice, representing the petitioners.

Maui County Deputy Corporation Counsel Jane Lovell, representing the water department, also zeroed in on beneficial use.

She cited Maui Tropical Plantation owner Mike Atherton’s desire for Na Wai Eha water to support a herd of longhorn steers as an attraction for his agri-tourism coffee plantation. The cows are not intended for beef. Lovell called them “decorator cows” and said they “do not serve any public purpose.”

Atherton gets his water through Wailuku Water Co., although he also plans to acquire part of the Wailuku Water land and irrigation system.

Bunn and Lovell both said Wailuku Water, as a nonoperating company, had established no beneficial uses at all.

Wailuku Water, recently reorganized as Wailuku Water Delivery Co., has water delivery agreements with a variety of users, including farms, ranches and what the petitioners disparaged as “fake farms” at Wailuku Country Estates.

It also owns the watershed from which all of the streams flow.

Wailuku Water attorney Paul Mancini emphasized that the company — previously operated as Wailuku Sugar — had served the community for 150 years.

He said there are “significant needs” for off-stream uses to sustain agriculture and communities, as well as to serve the streams.

“A simplistic approach does not address balancing the needs for healthy streams and healthy communities. Balancing means just that — a reasonable sharing among those that need the water.

His presentation was more technical than the other four closing statements. He emphasized the different characteristics of the diversions on the different streams and said it is not obvious how a commission decision on how much water to return to a stream could be implemented.

He also pointed out that no permits are at stake in this contested case, only the amount of water to be left in the streams. There are landowners along the streams below the Wailuku Water diversions who could take an unrestricted amount out, thus nullifying any returns by the plantations.

He said the resource has been declining in the last decade. Waihee Stream, which has about half the total amount, is down 16 percent, and Iao Stream is down 6 percent, he said.

By adding up amounts from various witnesses, he calculated that existing and projected demands add up to 60 million gallons per day — not counting Hawaiian Commercial & Sugar Co. use....

David Schulmeister, representing HC&S, said records show the plantation using an average of 50 mgd for 5,300 acres of sugar and some other crops. Wailuku Water and HC&S share water based on a complex agreement dating to 1924. Bunn ridiculed HC&S’ contention that cutting off its water might cause the entire plantation to collapse. There was testimony to that effect from HC&S managers, although Schulmeister did not repeat it in his summary.

Moriwake, speaking last, called statements that HC&S would have to cut sugar plantings a “threatened boogie man.” He said HC&S has acted as a hypocrite in saying it needs every drop to survive while doing little to prevent waste.

He and Bunn both said HC&S had acted as if Na Wai Eha water were free. Thus, in the plantation’s eyes, any alternative water source was an economic hardship....

• Harry Eagar can be reached at heagar@mauinews.com .

www.kycbs.net/Schulmeister-Water-Rights-3-5-8.mht

For more, GO TO > > > Blue Gold

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Davis Schulmeister is expected to testify as to the facts regarding his business, financial, social and personal relationships with Cades Schutte, Michael Heihre, Eric Grant, Judith Neustadter Fuqua; Ray Fuqua, American Arbitration Association, Wallace Fujiyama, Colbert Matsumoto, James Duffy, John Marshall, Grove Farm, Steve Case, Oprah Winfrey, Ed Case, Jeffrey Case, Suzanne Case, Henry Paulson, The Nature Conservancy; Stanley Hong; Faye Kurren; Judge Barry Kurren; Judge Robert Faris, Judge David Ezra; Judge Kevin Chang; Judge Rey Graulty; Judge Samuel King; Randall Roth; Guido Giacometti, Susan Tius, Dispute Prevention & Resolution, Inc.; Honolulu Panel of Neutrals; County of Maui; Maui Planning Commission; George Ariyoshi; George Harrison**; Hawaii Land Use Commission; Kamehameha Schools; Judge Eden Elizabeth Hifo, Hamilton McCubbin***; YY Valley Corporation; Yasuo Yasuda; Gene & Nora Lum; John Waihee; Vestin Mortgage, Inc; Daniel Akaka; Ron Brown; Paul Cathcart; Gensiro Kawamoto; Carol Asai-Sato; CB Richard Ellis; Mitsui Trust & Banking; University of Hawaii Foundation; Louise Ing; Aloha Airlines; Prudential; David Nakashima; Colbert Matsumoto; Wayne Arakaki; Wayne Hikida; Richard Toyama; Island Insurance Company; Lionel Tokioka; Warren K.K. Luke; Honolulu Star-Bulletin, Hawaii National Bank; Tan Tek Lum; Mark Hastert; Queen’s Medical Center; Jeffrey Watanabe; Consuelo Zobel Alger Foundation; Linda Chu Takayama; Jim Dooley, KITV 4 News; Sally Apgar, Honolulu Advertiser; Ian Lind; Peter Guber; Mandalay Properties Hawaii; William Young; Island Access Coalition; Hawaiian Electric Co.; Diane Plotts; Constance Lau; Robert Kihune; Gilbert Tam; Bank of Hawaii; Nathan Aipa; Colleen Wong; Louanne Kam; Lyn Anzai; Earl Anzai; William S. Richardson; William K. Richardson; Eric Martinson; Bruce Nakaoka; HiBEAM; Enterprise Honolulu; Judge Kevin Chang; Judge David Ezra; Judge Patrick Yim; Roy Hughes; Michael Tanoue; Donna Tanoue; James Duffy; Warren Price; PricewaterhouseCoopers; Evan Dobelle; Hamilton McCubbin; Dee Jay Mailer; Art Woolaway; Alexander & Baldwin; University of Hawaii Foundation; C. Brewer & Co.; Sukamto Sia; DFS Group, LP; Jeffrey Stone; Kevin Showe; Ko Olina Beach Lagoon Estates, LLC; Colleen Hanabusa; Benjamin Cayetano; Linda Lingle; Margery Bronster; Mark Bennett; Hugh Jones; Linda Chu Takayama; George Ariyoshi; John Komeiji; Larry Mehau; Steve Crouch*; Gabriel Aio*; William S. Chee*; Prudential Locations; J.P. Schmidt; Baker & Taylor**; Bart Kane**; Rod Tam**; Carlyle Group**; James Baker III; W.R. Grace Co.***; Gerard Jervis; Rocco Sansone, Marsh & McLennan, Inc.; Blossom Tong; Marsh Affinity Group Services; Mary Lou Woo; Steven Guttman; James Nicholson; Carol Muranaka; Cecil Santos; David M. Louie, St. Paul Travelers Insurance Co., Theresa Lam, Frank Fasi, Janet Reno, Outrigger Enterprises, David Carey, Jean Rolles, Clyde Mark, David Farmer, Richard Turbin, Judge Robert Faris, David Farmer, James Cribley, Dan Case, Ron Rewald, Ruth Ann Becker, Becker Communications, Ed Kubo, Jon Miho, Trinity Investments, LLC, and other entities yet to be named upon discovery.