THE reason for cynicism over the Bishop Estate trustee selection process and distrust of the state Supreme Court justices for their role in it was capsulized superbly recently.
Public scrutiny vital
in trustee selection
Senior federal Judge Samuel W. King, one of the "Broken Trust" authors, said:
"How does one go about acquiring one of these plums? Well, the trustees are appointed by the Supreme Court. Who appoints the Supreme Court? Well, that's the governor with the consent of the Senate.
"Where does the governor get the names of persons to appoint to the Supreme Court? That is called the Judicial Selection Commission.
"Well, who appoints the members of the Judicial Selection Commission? They are appointed by the chief justice, the governor, the president of the Senate, the speaker of the House, and two elected by members of the state bar association.
"Who have become trustees of the Bishop Estate? A chief justice, a president of the Senate, a speaker of the House, a partner of the governor and former chairman of the Judicial Selection Commission.
"Can we attribute such amazing coincidences to political maneuvering? If it quacks like a duck, and walks like a duck, and lays duck eggs, it's a duck! And where in this process is there consideration of the primary purpose of Princess Pauahi's will?"
Writhing under criticism like this, the present justices have decided by 4 to 1 to take themselves out of the process and leave future appointments to the judge of the probate court.
So far so good. But we can hardly expect it will be a smooth, orderly process like, for example, the probate court's appointment of trustees for our second largest landed trust, the Estate of James Campbell.
James Campbell's primary inheritors, now numbering less than 30, follow an orderly process to nominate a person for the court to appoint when a vacancy occurs. They set criteria, compile a long list of names, trim it to a short list, interview finalists and finally recommend a single nominee. The probate judge always has gone along with their wishes.
This won't work for the $10 billion Bishop Estate. It has no clear list of beneficiaries. The potential numbers are vast. Is it all 200,000-plus Hawaii residents with Hawaiian blood? If so, who can speak for them? The Office of Hawaiian Affairs? Kamehameha Schools alumni? Other Hawaiian groups including sovereignty activists? Can the attorney general speak for the interest of the community at large since the estate's impact is so far-reaching?
These are questions the Supreme Court had begun to grapple with before the justices decided to toss the ball to the probate court. The justices had consulted with Hawaiian groups, been well received and even seemed to have developed a consensus that they should continue to do the job. After all, that's what is provided in the 1883 will of Princess Bernice Pauahi Bishop. When she deeded her royal lands to the trust, she directed their revenues be used to establish the Kamehameha Schools, and nominated the high court to choose trustees.
The simple truth is that any selection method will be burdened with intense in-fighting and political maneuvering because the spoils are so great. The assets to manage are estimated at $10 billion. Recent trustee pay has been at $900,000.
SO what is the best remedy? Public scrutiny, as it is with so many things in a democracy. We all will be watching future selections much more critically and skeptically, and that will be good. Thus an open selection process is immensely important. But organizing orderly input prior to an appointment will remain an immense challenge.
Nothing is more important than the final result of educating more Hawaiian children, educating them even better and generating sufficient income to do so.
Today the Kamehameha Schools educate only about 4,000 Hawaiian children out of a pool perhaps 12 times that large. For an estate as rich as Bishop that is wholly inadequate.
Trustee Oswald Stender a few years ago painted a vision of Hawaiian children and youths being the best educated students in America by the estate's 150th birthday in 2033. His plan's details didn't go over well with his fellow trustees but that's still a goal worth striving for.
CORRECTION: Bishop Estate trustee Gerard Jervis says he has never been a business partner of former Gov. John Waihee as suggested in A.A. Smyser's "Hawaii World" column of Dec. 23 in a quotation from U.S. Judge Samuel P. King.
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