On Aug. 9, the Star-Bulletin published "Broken Trust,"
an essay written by five prominent Hawaii citizens tracing
the tangled relationships between Kamehameha Schools/
Bishop Estate and the state judiciary.
The authors described trusteeships as "political plums"
bestowed on influencial citizens by the Supreme Court
justices who choose the trustees. The essay said this
relationship appears to be a conflict for the justices
who often hear cases related to Bishop Estate.
That conflict, the essay said, plus the justices'
questionable judgment in selecting trustees,
undermines public faith in Hawaii's highest court.
This is the justices' response to the
observations in "Broken Trust."
Broken Trust," a lengthy but factually inaccurate, distorted, irresponsible opinion piece, was published in the Aug. 9 edition of the Honolulu Star-Bulletin. The piece's five co-authors expressly and impliedly impugned the integrity, honesty, ethics, intelligence, qualifications, competence and professionalism not only of the five members of the Hawaii Supreme Court as individuals, but also of the court as an institution.
Broken Trust criticisms
In the will of Ke Alii Bernice Pauahi Bishop, she delegates the task of selecting successor trustees of her estate to the "justices of the Supreme Court," and for 113 years those who have served as Supreme Court justices have accepted that responsibility as a solemn duty. Ke Alii Bishop's will is the fundamental legal document underlying Kamehameha Schools and Bishop Estate. Its terms and conditions should not be lightly changed by any group or person.
It is out of respect for her wishes and out of a sense of historic duty that cannot be minimized that we continue the century-old tradition of selecting successor trustees to her estate. Any other statement of purported fact, innuendo or suggestion that we are otherwise motivated is nothing more than the unfounded, reckless speculation on the part of the co-authors, whose motivations should be seriously questioned.
"Broken Trust" expresses the co-authors' self-sanctified opinion that it is unethical for the justices of the Supreme Court, in their individual capacities, to appoint the trustees of the estate of Bernice Pauahi Bishop, despite the express instructions appearing in the will of the princess.
As the co-authors are no doubt perfectly aware, in 1994, Common Cause of Hawaii requested that the Commission on Judicial Conduct review the ethical propriety of our participation in the appointment process. After conducting its review, the commission issued Formal Advisory Opinion No. 14-93, in which it concluded that our involvement in the appointment process was not improper, subject, of course, to the admonition that we comply with the letter and spirit of the Revised Code of Judicial Conduct.
We have scrupulously done so. In this connection, we add that we have approached the appointment process with the solemnity and seriousness that it deserves.
In fact, we have always been receptive to reforming the selection process in order to produce trustees whose qualifications fit the needs of the board. To these ends, we encouraged the application of as broad a range of candidates as possible without preference for race, religion or political persuasion. We met with the trustees to solicit their understanding of the needs of the estate in an attempt to generate a trustee profile.
We conducted face-to-face interviews with those candidates who we felt were best positioned by way of their backgrounds and the present needs of the board to carry out the mission of the estate. We checked candidates' references, reviewed letters of support, as well as letters in opposition to the candidates, and, very importantly, have publicized the names of those finalists to gain even more information concerning them.
We even experimented with the creation of a "blue ribbon panel" of community leaders to screen candidates for nomination. Many of the reforms noted above were unprecedented in the 113-year history of trustee selection by justices of the Supreme Court. We are proud to have taken these historic steps and pledge to continue to consider any and all further suggestions. There are some who would impugn us for utilizing the "blue ribbon panel," only to disregard its nominees and proceed with our own selection.
The panel we selected was urged to nominate trustee candidates as if they were hiring a chief executive officer for a major corporation in Hawaii. We suggested that the panelists engage a national head-hunting firm and that they advertise in Hawaii, nationally and even internationally. We set no parameters on the search and gave no directions as to how they should conduct their business, except we indicated that we would like to see a list of finalists who were the most eminently qualified individuals they could find.
It is ludicrous to suggest that we would proceed in this fashion having a particular candidate in mind whom we would later select. It was wrong for any panelist to believe this might be the case, and it is speculative in the extreme for any of the co-authors to so opine.
As a matter of fact, Mrs. Gladys Brandt, one of the co-authors and the chair of the blue ribbon panel, advised us that the panel was factionalized almost from the beginning and did not work harmoniously to fulfill its mission. Despite our suggestion, no extensive advertising or professional search was ever undertaken by the panel.
We understand that no interviews were ever conducted with the applicants, and it is unclear how the final list was produced. We had no assurance that the process implemented by the panel, whatever it was, yielded the names of all of the most eminently qualified individuals as we had directed. Perhaps this is the chagrin Mrs. Brandt witnessed when she delivered the list and indicated to us that the group was so polarized that it was doubtful that it would ever meet again. The absence of John Waihee's name from the list was of no concern to us because none of us could envision selecting him even if his name were on the list.
In short, for reasons known only to the panelists, their list did not include the names of all "eminently qualified" applicants.
During the period that the "blue ribbon" panel was providing its services, the Commission on Judicial Conduct had under inquiry the question whether the Supreme Court justices could ethically continue to appoint Bishop Estate trustees as provided for in the will. As earlier stated, the commission determined that we could comply with our ethical obligations and continue to select trustees, subject to the normal ethical considerations.
Because we were not assured that the panel had reached out to all potential applicants, regardless of race, religion or political persuasion, we reopened the process.
The co-authors of "Broken Trust" have, for reasons apparently known only to them, gratuitously sought to degrade the professionalism and quality of our court's work product. The thoroughness, rigor of analysis, regard for judicial conventions (including a profound respect for the orderly development of the law in accordance with existing precedent and for the canons of statutory construction) and consistency of our published opinions, which are a matter of public record and are readily available for all to read, speak for themselves.
The co-authors' irresponsible attempt to erode public confidence in our integrity and professional competence does a disservice to the judiciary as a separate and coequal branch of government, as well as to the people of Hawaii.
Ronald T.Y. Moon
Robert G. Klein
Steven H. Levinson
Paula A. Nakayama
Mario R. Ramil
Bishop Estate Archive
Broken TrustBy Gladys Brandt,
Msgr. Charles Kekumano,
Walter Heen, Samuel King
and Randall Roth
We commend the Supreme Court justices for responding to our article. However, they do not deny essential facts previously set forth.
The chief justice told a blue ribbon panel that the selection for a vacant KS/BE trusteeship would be made from the panel's list, even if only five names were on it. This did not happen.
The justices rejected the blue ribbon panel's list without explanation to the panel's chairperson or, apparently, anyone else;.
The justices now say there was "no assurance that the process implemented by the panel...yielded...the most eminently qualified individuals." Ignoring that list, the justices picked the political confidant and friend of John Waihee, Gerard Jervis.
The justices now attribute statements to Gladys Brandt that she never made.
There appears to be a discrepancy between John Waihee's version and the justices' version; John Waihee recently wrote the Star-Bulletin that he had told the chief justice that he would not accept appointment as a trustee; if this were true, you would expect that the justices would have mentioned that as a reason why they could not envision selecting him, but their written response makes no mention of this.
The justices do not appear sensitive to the appearance of conflict which arises from their hearing cases involving KS/BE when they may be personally liable under a negligent hiring theory for any damages suffered by KS/BE on account of misfeasance by the trustees appointed by them.
There are other issues and factual disagreements, but they are tangential to the central issue of restoring the integrity of KS/BE.
Some people have said that we were courageous. In truth, however, we simply felt that a review of KS/BE functions and procedures needed to begin, and we were willing to take the first step. It is our hope and expectation that others will join us in the march with a common and shared goal of Imua Kamehameha.
This response was submitted by "Broken Trust'' authors
Gladys Brandt, former principal of Kamehameha School for Girls;
Msgr. Charles Kekumano, retired Catholic priest and chairman of
Liliuokalani Trust; Walter Heen, retired judge of the state
Intermediate Court of Appeals and former legislator; Samuel King,
senior federal District Court judge; and Randall Roth, University
of Hawaii law professor and expert on wills and trusts.
Bishop Estate Archive