High court
bows out of
Lindsey case

A panel of five substitute
judges may hear appeals to the
Supreme Court in the Bishop
trustee removal trial

By Rick Daysog
Star-Bulletin

The Hawaii Supreme Court's five justices said they will not hear petitions relating to the removal of Bishop Estate trustee Lokelani Lindsey.

Yesterday, the high court judges unanimously granted Attorney General Margery Bronster's emergency request to disqualify themselves from considering matters relating to the Lindsey removal trial.

Chief Justice Ronald Moon also said he may appoint a panel of five substitute judges to hear appeals to the Supreme Court that involve the Lindsey case.

"They had no alternative from our position," said Deputy Attorney General Dorothy Sellers. "It was absolutely appropriate."

On Monday, Bronster asked the high court to recuse itself from considering two writs of mandamus separately filed by estate general counsel Nathan Aipa and attorneys Bruce Graham and William McCorriston.

The writs asked the high court to direct Circuit Judge Bambi Weil, the presiding judge in the Lindsey removal case, to reconsider her Dec. 21 decision ordering the delivery of documents.

Weil ruled that Aipa had to turn over two boxes containing boardroom minutes for the period from March 1993 through November 1998 to Douglas Ing, an attorney for Bishop Estate trustee Oswald Stender, who subpoenaed the records.

Stender and fellow trustee Gerard Jervis are seeking Lindsey's removal, alleging she breached her fiduciary duties, mismanaged the estate-run Kamehameha Schools and is unfit to serve on the estate's five-member board.

Moon last week temporarily blocked Weil's ruling and directed Weil to hear objections raised by Aipa, who also moved to quash the subpoena.

Yesterday's recusal comes nine months after the Supreme Court disqualified itself from hearing Bishop Estate's appeals to subpoenas issued by Bronster in her 16-month investigation into allegations of financial mismanagement and breaches of duty by the estate's trustees.

Bronster at that time argued she may be investigating the trustee selection process and may subpoena testimony from individual judges. Until recently, trustees were selected by the high court.

Despite the court's recusal yesterday, Weil went ahead with a hearing on Aipa's objections.

Howard Luke, Aipa's attorney, argued against the release of the board minutes, saying they contain proprietary information and material that should be protected by attorney-client privilege.

Luke said much of the material requested may not be relevant to the Lindsey removal trial. He added that the subpoena for the minutes may be moot because Aipa on Wednesday voluntarily handed over the documents to Stender.

Ing countered that Stender has been asking Aipa to turn over the documents since April. He noted that the estate eventually agreed to deliver the minutes in August if Stender and Jervis would agree to certain conditions. Stender did not agree to those conditions.

Ing said the minutes are important to the trial because Lindsey claims she received board permission for many of the activities she conducted as lead trustee of the estate's educational programs.

Lindsey's lawyers, for instance, said that she received permission from fellow trustees to release her controversial report last December that charged the longer students attended Kamehameha Schools, the more their test scores declined. Ing has argued that the report had inaccuracies and was designed to deflect criticism from Lindsey.

"The minutes are a liability to the majority trustees," Ing said. "They are a liability that hangs like an albatross around Mr. Aipa's neck."

Weil will decide the issue within the next 10 days.

During yesterday's hearing, Stender's attorney, Crystal Rose, also raised an objection to trial delays caused by illness to Lindsey attorney Michael Green.

Green on Tuesday asked to be excused from the trial due to a stress-related inner ear problem that made him feel dizzy. Green later faxed a note to Weil's office from his doctor, who said he should not return to work until Monday.

But Rose noted that on Wednesday -- one day after he was excused from the trial -- Green took part in two unrelated court cases before federal judges.

Green said his federal court appearances involved simple sentencing and bail matters that required about a half-hour of work.

He said that he was so dizzy in court on Tuesday that he almost fell during his cross-examination of a witness.

He said he has been staying up until 2 a.m. each night to prepare for the Lindsey trial and that his doctor recommended he avoid such stressful activities.

Green said he is fully prepared to cross-examine Jervis, who is expected to take the witness stand on Monday.

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