Gov. raps justices
for public action

The Supreme Court's judges
ought to recuse themselves if
Bishop Estate appeals, he says

By Bruce Dunford
Associated Press

If the legal showdown over the state's investigation of the Bishop Estate escalates to the point of appeals, the five sitting members of the state Supreme Court would not be able to decide them, Gov. Ben Cayetano said.

That's because of the Supreme Court members' involvement in the selection of the trustees of the Bishop Estate and their recent involvement in the public debate over that selection process, he said.

"Clearly, this Supreme Court with the five members would not be able to hear this particular issue," Cayetano said in response to a question. "They would have to recuse themselves, and you would have basically five other acting Supreme Court justices making any kind of decision in this particular case."

Chief Justice Ronald Moon was out of town yesterday and unavailable for comment.

"We are well aware of our ethical obligations, and we'll do the appropriate thing at the appropriate time," said Associate Justice Robert Klein, filling in during Moon's absence.

The governor has been critical of the high court's unusual action recently of submitting an article for publication, defending itself from criticism of its role in the selection of the trustees of Bishop Estate.

Critics, including Cayetano, have said that selection process has the strong appearance of being highly political and should not involve the Supreme Court members.

Cayetano blames that on the huge compensation earned by the trustees.

At a news conference yesterday, Cayetano reiterated his belief that the high court's public actions have violated a judicial canon against becoming embroiled in controversies.

Cayetano said he'll let the matter rest with his public expression of concern, but he said someone else might file a complaint against the justices.

Klein declined to comment on that subject.

Cayetano was asked how U.S. District Senior Judge Samuel King's involvement in the Bishop Estate controversy was any different in a judicial ethics sense than that of the members of the state Supreme Court.

King is one of four leaders in the Hawaiian community who along with University of Hawaii law professor Randy Roth wrote the "Broken Trust" essay, which was highly critical of the management of Bishop Estate, its beneficiary Kamehameha Schools and the state Supreme Court's selection of the trustees. The essay was published in the Honolulu Star-Bulletin.

"On the one case, you have the Supreme Court, although they use a legal fiction of purporting to act as individuals, making a statement. And it's the court - the court is making a statement about itself," Cayetano said.

"In King's case, he is involved in an action in which he is acting clearly as an individual citizen. He's not involving the federal court."

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