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Local News =

Posted=20 on: Thursday, April 24, 2008

Kamehameha wants $2 million = returned

School points to breach in terms of confidential = settlement paid=20 in 2007

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By Jim=20 Dooley
Advertiser Staff Writer

Kamehameha Schools is trying to get back as much as $2 = million of=20 the $7 million it paid last year to settle a lawsuit that = challenged=20 its admissions policy favoring Hawaiian students, according = to legal=20 papers filed in federal court in California.

The papers are contained in new litigation filed after=20 publication of an Advertiser news story in February that = revealed=20 that the settlement was $7 million.

The money was paid to a Big Island mother and child in = return for=20 their agreement to drop the lawsuit just before the U.S. = Supreme=20 Court was to decide whether it would hear an appeal of the = case.

The plaintiffs, who have never been publicly identified = and are=20 known as Jane and John Doe, alleged in the California case = that the=20 schools "threatened" to publicly identify them if they did = not place=20 $2 million in an escrow account for possible return to the = schools=20 because terms of the confidential settlement had been = revealed.

Ken Kuniyuki, a Hawai'i lawyer who now represents the = pair, is=20 alleging that David Schulmeister, an attorney for the = schools, said=20 that if the schools were forced to file suit over the issue, = the=20 names of the Does would become public.

Kuniyuki made the allegation in a sworn declaration filed = this=20 month in federal court in Sacramento, seeking a court order = barring=20 public identification of the plaintiffs.

Schools attorney Paul Alston denied that Schulmeister = threatened=20 to reveal the plaintiff's identities.

"Schulmeister told Kuniyuki that the (Kamehameha Schools/ = Bishop=20 Estate) believed the settlement agreement had been breached = and that=20 the estate was entitled to damages," Alston said in court = papers=20 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=20 that the $2 million be held in escrow while the parties = discussed=20 resolution of the dispute short of a lawsuit, according to=20 Alston.

Alston stressed on Tuesday that Kamehameha Schools has = not filed=20 a lawsuit or taken any action that would publicly identify = the=20 Does.

"Kamehameha Schools is closely scrutinizing how to = proceed," he=20 said.

Tuesday night and yesterday, the Kamehameha Schools board = of=20 trustees and Chief Executive Dee Jay Mailer sent a mass = e-mail to=20 parents and alumni notifying them of the new legal = skirmishing in=20 California and alerting them that The Advertiser was = preparing a=20 story on the subject.

"A breach of confidentiality has occurred, and an = investigation=20 into the line of responsibility is in process. Legal action = as=20 appropriate shall follow," the trustees' e-mail said.

"It is aggravating to be drawn into this complicated and = unsavory=20 infighting," the trustees' message continued. "However, we = will not=20 allow this latest legal maneuver to distract us from our=20 mission."

'Fear for our safety'

Jane and John Doe filed legal papers in Sacramento = federal court=20 denying any role in the release of the settlement figure by = John=20 Goemans, an attorney who used to represent them but who now = is=20 involved in a dispute over compensation for his services in = the=20 case.

Their attorney, Kuniyuki, also asked the federal court to = issue a=20 restraining order against all parties in the case preventing = any=20 attempts to disclose the identities of Jane and John = Doe.

He attached an April 2 sworn statement from Jane Doe that = said,=20 "both John Doe and I fear for our safety if our identities = are made=20 public."

She noted that more than 1,550 reader comments were = posted on the=20 Advertiser's Web site following the February story that = disclosed=20 the settlement amount.

"Many of them are extremely critical of us. Some include = threats=20 of violence against us," she said.

"I have lived in Hawai'i for many years. The negative = comments=20 and threats posted to the Honolulu Advertiser's February 8, = 2008=20 article are entirely consistent with my experience with many = local=20 residents regarding the admissions policy of the Kamehameha=20 Schools."

If their identities become public, she said, "we are = prepared to=20 move and go into hiding."

Last week, following a hearing before U.S. District Judge = Frank=20 Damrell Jr., all parties in the federal court case = stipulated that=20 they would not disclose the true identities of the Does.

Goemans told The Advertiser in February that he believed = the=20 settlement amount should be a matter of public record, given = Kamehameha Schools' status as the wealthiest and most = influential=20 nonprofit institution in Hawai'i.

Attorney's troubles

In a separate civil case now pending in Sacramento state = court,=20 Goemans was sentenced earlier this month to serve eight days = in jail=20 and fined $4,000 for violating a court order to keep the = settlement=20 amount secret.

Goemans, 73, now living in Florida with his sister, said = by=20 telephone, "I have zero money, I have serious health issues, = and now=20 I've been ordered to serve an eight-day jail sentence in = California=20 in the middle of May. I don't know what's going to = happen."

The California state case was filed against Goemans by = Eric=20 Grant, a Sacramento attorney who litigated the Does' lawsuit = from=20 the time it was first filed in Hawai'i in 2003 through its=20 settlement in May 2007.

Under the terms of the settlement agreement, Grant was = entitled=20 to 40 percent of the $7 million total, or $2.8 million.

He sued Goemans in Superior Court in Sacramento last year = to try=20 to settle the outstanding question of how much Goemans = should be=20 compensated.

Goemans conceived the civil rights lawsuit against the = schools,=20 found the plaintiffs on the Big Island and brought them = together=20 with Grant.

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

According to documents filed in the California state = case, Grant=20 became concerned early this year that Goemans intended to = reveal the=20 amount of the legal settlement and on Feb. 5 obtained a = court order=20 against Goemans blocking any such disclosures.

Three days later, The Advertiser published a news story = based on=20 Goemans' statements about the settlement amount.

Goemans said in a sworn statement filed with the = California court=20 March 17 that he is "not medically or mentally 100 percent" = and had=20 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=20 deliberately and knowingly violate the court's order," the = statement=20 said.

But he reiterated his belief that Kamehameha Schools, as = a=20 tax-exempt organization, should not and cannot keep the = terms of the=20 settlement confidential.

After the settlement terms were made public, Grant filed = a new=20 federal lawsuit March 28 in Sacramento against Kamehameha = Schools=20 and his own clients, Jane and John Doe, asking the court for = a=20 ruling that he was not responsible for the disclosure and = has no=20 financial liability because of it.

Grant and an attorney who represents him did not return = telephone=20 requests for comment.

Alston filed a lengthy legal memo in the case last week=20 questioning the Sacramento court's jurisdiction in the = matter since=20 the Does and the schools are in Hawai'i.

Reach Jim Dooley at jdooley@honoluluadvertiser= .com.

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Paul Alston

ABOUT THE CASE

June 2003: On behalf of an unnamed non-Hawaiian student, = identified only as John Doe, attorneys John Goemans and Eric Grant = file a=20 civil-rights lawsuit disputing Kamehameha's admissions policy.

August 2003: A federal court orders Kamehameha Schools = to enroll=20 a non-Hawaiian boy, 12-year-old Brayden Mohica-Cummings, until a = final=20 verdict on the admissions policy is made.

November 2003: U.S. District Judge Alan Kay decides = against John=20 Doe, ruling that Kamehameha Schools can continue its = Hawaiians-preference=20 admissions policy because of its unique and historical = circumstances.

November 2003: Trustees for Kamehameha Schools approve a = settlement allowing a seventh-grade non-Hawaiian student to = continue=20 attending the private school until he graduates. In exchange, = Grant and=20 Goemans, the lawyers for Mohica-Cummings, agree to drop one of = their two=20 federal court challenges to the school's admissions policy. The = two=20 lawyers appeal Kay's John Doe ruling.

Aug. 2, 2005: By a 2-1 vote, a panel of the 9th U.S. = Circuit=20 Court of Appeals decides in favor of John Doe, ruling that = Kamehameha's=20 admissions policy constitutes unlawful racial discrimination and = throwing=20 the 120-year-old policy into limbo. A week later, the same three = judges=20 deny a request by John Doe to be admitted in the fall, pending an = appeal=20 by the school.

Aug. 6, 2005: About 20,000 Kamehameha students, alumni = and other=20 supporters rally on all major Hawaiian islands and the Mainland to = show=20 their support for the embattled school. At a major rally in = Honolulu,=20 thousands hear a string of fiery speeches before marching two = miles to=20 Mauna 'Ala, the Royal Mausoleum in Nu'uanu, where school founder = Princess=20 Bernice Pauahi Bishop is buried.

Feb. 22, 2006: The 9th Circuit grants Kamehameha's = request for=20 an en banc rehearing of its August 2-1 decision, essentially = throwing out=20 that decision pending a review by a larger panel of 15 judges.

Dec. 5, 2006: By an 8-7 vote, the full 9th U.S. Circuit = Court of=20 Appeals upholds Kamehameha Schools' longstanding policy aimed at = only=20 admitting students with Hawaiian blood.

March 2007: Doe's attorneys ask the U.S. Supreme Court = to look=20 at the legality of Kamehameha Schools' admissions policy.

May 14, 2007: Kamehameha Schools and Doe settle the = lawsuit,=20 which was pending before the U.S. Supreme Court.

THE SCHOOLS

Kamehameha Schools, established under the 1884 will of Princess = Bernice=20 Pauahi Bishop, has assets of more than $9 billion and educates = some 3,400=20 children of Hawaiian ancestry at campuses on O'ahu, Maui and the = Big=20 Island.

Another 30,000 students and adults were served through the = schools'=20 outreach programs and support of charter schools.

John Goemans

David Schulmeister

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