Bishop Estate Controversy and Trustee Selection
Price of Paradise · Hawaii Public Radio · aired 1997-12-28
Guests: Gladys Brandt (former Principal, Kamehameha Schools); Walter Heen (retired judge, Hawaii Intermediate Court of Appeals); Samuel P. King (Senior U.S. District Court Judge)
Duration: 1:04:57

[00:00:05] Randall Roth: Aloha, this is Randy Roth, host of the Price of Paradise Radio Show. We broadcast Sunday mornings at 8:00 on KHPR 88.1 FM and KKUA 90.7 FM and then again, Sunday evenings at 8:00 on KIFO 1380 AM. Everyone who works to bring the show to you is a volunteer who believes in the importance of lively and informed dialogue. We believe the future of any community's future is directly we believe that any community's future is directly related to the level of activity in its marketplace of ideas.
[00:00:41] Randall Roth: Today's topic is Bishop Estate Trustee selection, and with me to discuss it are Gladys Brandt, Walter Heen, and Sam King. The four of us plus Monsignor Charles Kekumano, wrote an article that appears on page B3 of this morning's Advertiser, summarizing our thoughts on the topic. One of our suggestions is that all future Bishop Estate Trustees have a sense of humor. And with that in mind, we invite you to listen to the first song on Frank DeLima's new album, Ethnothnology 101. Frank DeLima, take it away.
[00:01:30] Frank DeLima: When I was a boy, I lived next door to the niece of the wife of the governor. She had no friends that I could see, so I smiled at her when she smiled at me. So I smiled at her when she smiled at me. I smiled so much they rewarded me by making me a Bishop Estate Trustee. I smiled so much they rewarded me by making me a Bishop Estate Trustee.
[00:01:58] Frank DeLima: When I was young, it was my joy to serve the church as an altar boy. But Catholic blood won't crease your pants, so I became Episcopalian. So I became Episcopalian and God was so impressed that he bit me to be a Bishop Estate Trustee. And God was so impressed that he bit me to be a Bishop Estate Trustee.
[00:02:29] Frank DeLima: For my first job, I worked for a man who worked for the court custodian. I wiped the seats on the judge's bench and polished the judiciary monkey wrench. And polished the judiciary monkey wrench. I polished that wrench so carefully that now I am a Bishop Estate Trustee. I polished that wrench so carefully that now I am a Bishop Estate Trustee.
[00:02:57] Frank DeLima: In search of a way to get my kicks, I ended up in island politics. I got elected and I served my time, and I never got indicted for a major crime. And I never got indicted for a major crime. For the minor ones, it was destiny that I would be a Bishop Estate Trustee. For the minor ones, it was destiny that I would be a Bishop Estate Trustee. So all you mokes wherever you may be, if you think that you might want to be like me, make nice to the folks behind closed doors and don't forget to irritate the editors. And don't forget to irritate the editors.
[00:03:42] Frank DeLima: Cause editors can never be an honorable Bishop Estate Trustee. Cause editors can never be an honorable Bishop Estate Trustee.
[00:04:00] Randall Roth: Well, there you have it, folks. That's Frank DeLima, that's the first record on his new album, Ethnictnology. Sam King, I don't know how in the world you can follow that. But in this morning's advertiser, on page B3, there are actually two articles. One was written by the four of us plus Monsignor Kekumano. The other one, though, is by Hazel Bay, who's a colleague of mine at the Law school, and basically, Hazel is saying that the four justices who decided to get out of the trustee selection business were absolutely right. Uh, your thoughts on Hazel's article and the issue?
[00:04:39] Samuel P. King: Well, of course, I agree with her. Uh, and I agree with what the Supreme Court, at least four of them did. Uh, I like to point out that in the past, it's been pretty clear that there were justices of the Supreme Court who would never have touched this if it Trusteeship had come up during their term. For example, uh, Ned Kidwell. I'm pretty sure that he would have said, "I don't want any part of it.", but nothing came up during his term.
[00:05:04] Randall Roth: Well, in fact, he's mentioned to me that he lived in fear that it would come up because he knew he was going to suggest to the others that they simply not, uh, appoint a trustee.
[00:05:14] Samuel P. King: Probably, yeah. And Ed Nakamura, Justice Nakamura, who was a partner of my cousin Jimmy King before he went on the court, uh, I'm sure he wouldn't have participated in it either. And it was my understanding, you know how rumors get around, that there were at least two members of the present court who were very unhappy about the situation from the very beginning. So, uh, it wasn't surprising that they finally got a majority and actually got four. And intelligence prevailed over, uh, the weight of history.
[00:05:49] Randall Roth: But how do you respond to, to people who say if the process has been politicized with five Supreme Court Justices making the decision, uh, it's okay to turn it over to one probate court judge, Walter Heen, any thoughts on that one?
[00:06:05] Walter Heen: Politics is, politics is, politics. And the whole world is run by politics, whether it's within a business organization or in community. So, why are we better off with one judge doing it than five justices? It's not so much the one judge, it's the process that we have suggested be established to, to select the trustees, to the process which the judge should follow in making that selection. And paramount in that process is openness. Let everything be done out in the open, not in a secretive way that the Supreme Court has been doing it in the past. That's the safeguard.
[00:06:46] Randall Roth: Okay. Now Sam, I asked you earlier to comment on on Hazel's article. I think she would say, even if the justices pledge to be open in the future, she would still say they made the right decision in, in getting out of this process of selecting trustees. Is, am I right on that?
[00:07:05] Samuel P. King: Well, of course, then you get into the very technical parts about uh, well technical to some people who don't think it applies is about the ethics of the situation. The judges just cannot possibly, uh, be in this position and sit as judges on important cases that come up involving the Bishop estate and the Bishop Estate is such a large part of what goes on that uh, they're they're in this problem all, all the time. In fact, there's one pending right now where the uh, estate has appealed the the subpoena is issued by the Attorney General.
[00:07:43] Randall Roth: But the Bishop Estate also comes in front of the probate court. So why would a probate court judge be able to select trustees where the five Justices couldn't?
[00:07:52] Samuel P. King: Well, as I used to say when I was practicing law, the the district court was the last stronghold stronghold the district federal district court was the last stronghold of tyranny. Then I became a federal district judge and I figured I'd overstate it. And you found out you were right. Right. And, and I think the system wouldn't work unless there was an appeal. So that's what saves it. You can appeal. So if some judge gets way off base, you can appeal. And that's why this even more so the Supreme Court should be pure and untainted because you can appeal from a probate judge that goes way out.
[00:08:26] Randall Roth: Yeah, that that's the real danger that the if if a case or controversy goes down to the circuit court and then is appealed, it comes before the same justices who made the decision to appoint the trustees. Oh, so the final decision. Final decision. You can have a screw up, if you will, down at the circuit bench, but it can be rectified presumably by the Supreme Court. You have that safeguard. You don't have it when the trustees are being selected by the Supreme Court and they sit in final judgment of what the trustees have done. Right, by the justices acting in their individual capacity. In their individual capacity. So we've got the various ethical issues that Hazel has laid out in her article this morning, and you're talking about the the very real problem when the final decision is made by the same people who pick the trustees in the first place.
[00:09:19] Randall Roth: Walter and and Gladys, I'm gonna get some of this legal stuff out of the way, and then I'm gonna come to you for the the real important aspects of all of this. But Walter, four of the justices uh have withdrawn from picking trustees in the future. The fifth, Justice Klein, is the only native Hawaiian of the five, and you've been quoted in the newspapers over the last week or so as suggesting that maybe that's not a coincidence that the one justice who, who would rather continue to make these selections is the one native Hawaiian of the five. Any thoughts?
[00:09:39] Walter Heen: Well, I think that stems from a natural sense of protectiveness that all native Hawaiians have with respect to the Bishop estate, and his fear expressed by many other native Hawaiians that this is just another step in the degradation and eventual destruction of the estate and the Kamehameha schools. Uh, I don't happen to agree with that, but nonetheless I can understand it.
[00:10:18] Randall Roth: Uh, Gladys Brandt, this morning the the four of us plus Monsignor Kekumano, who's saying Mass right now, as this show is going on, uh hopefully saying a little prayer for us that that we do a good job with this. Um, the five of us wrote something in this morning's paper that, um, suggests that that in going from here, that perhaps some things should be kept in mind. And one of the the list of criteria that we suggested, perhaps, should be considered is that any candidate for Bishop Estate Trustee in the future should be a member of the Protestant religion. And this is something that the five justices in the past have said that that they wouldn't consider, that they wouldn't, uh, pay any attention at all to the religion of the candidate. Um, what are your personal thoughts as to why this should be one of the criteria?
[00:11:12] Gladys Brandt: Well, it's been a puzzlement to me, excuse me, as to why that has been so. In the hiring of teachers, uh Kamehameha has adhered to the fact that they must be a Protestant religion. And in thinking as to what the princess had in mind in that time, there's there's no question in my mind that central to her thoughts was education. That the children of Habai be educated. Secondly, that they be of Protestant faith because she was a Protestant faith. So, why is it that just the teachers must adhere to that and not the trustees? So, it appears to me that a suggestion to the Probate Court might be that they look into that and try to make certain that that wish of the princess be kept.
[00:12:14] Randall Roth: So you're you're saying in in looking at the will, we're trying to figure out what are the most important provisions to the princess. Yes. And you would say that number one is to educate children. Yes. But number two is that somehow or another, the Protestant religion be at the core of this institution called Kamehameha School. And we've got two references in the will to members of the Protestant religion, the one referring to teachers and the other referring to trustees. And so you're saying that if the princess believes strongly that the trustee should be members of the Protestant religion until a court has said that there's something wrong with that, that it ought to be adhered to.
[00:12:55] Gladys Brandt: That is what I'm saying.
[00:12:57] Randall Roth: Okay. Yes. Sam, you and Walter are our judges. Um, what's the legal side of this whole thing because there's something about the court having been involved in this at one time in the past officially, and then we've got the justices unofficially being involved in this. Help us understand the legal aspects of what Gladys is saying.
[00:13:17] Samuel P. King: Well, with respect to the teachers, there's a federal statute that says you cannot discriminate in hiring on the basis of various things, including religion. Now, there's no such federal statute with respect to trustees. We're only talking about five people. When we're talking about employment, you're talking about a person's livelihood and you're telling them you can't get a job unless you join our religion, and that, according to federal law, is not permitted.
[00:14:13] Samuel P. King: Correct. And in fact, if it has been decided that they can't do that for teachers, it's already been decided. Why in Walter Heen, why in the world have the five Supreme Court of Hawaii justices in their unofficial capacity, in their individual capacity, why have they said in the past that they cannot discriminate, uh, in favor of members of the Protestant religion in selecting trustees?
[00:14:38] Samuel P. King: They didn't say they cannot. They said they would not on the advice of the judicial disciplinary commission. Uh, they the Supreme Court submitted several questions to them, and one among them was uh, this question of the religion of the trustees. And the commission told the Supreme Court that it's okay to continue to make the appointments, but that they should be very careful about whether or not they want to adhere to the Episcopal requirement, or Protestant requirement, I'm sorry. Uh, and the trustees said they would no longer adhere to that requirement. It was not anything that they felt legally compelled to do.
[00:14:49] Randall Roth: So the will says teachers and trustees must be members of the Protestant religion. But because of a specific federal statute and federal case law, you're saying that the Kamehameha can't discriminate against non-Protestants in hiring employees slash teachers, but that that law and those cases, arguably, don't apply in the selection of trustees.
[00:15:28] Samuel P. King: But as I as I recall the question was presented to the Judicial Disciplinary Commission, not to the Ethics Commission. That's right. And the disciplinary commission said, you can continue to do it as long as you don't do anything unethical. That's right. So I think that one of the real problems facing the Supreme Court right now with justices that they figure they can't really carry out the will without being unethical. You feel very strongly, Sam King, that uh the four justices have done the right thing and um you've already said they've done the right thing in withdrawing from this process.
[00:15:59] Samuel P. King: Absolutely. In fact, there was a lot of soul searching I'm sure in their doing that. I'm, I'm almost positive that Chief Justice Moon has never been very comfortable with this.
[00:16:20] Randall Roth: Walter Heen, you're in total agreement with Sam on on this one.
[00:16:23] Walter Heen: Undeniably.
[00:16:25] Randall Roth: Okay. Gladys Brandt, you're the non-lawyer in the group. And so, for our many of our listeners, that makes your opinion especially powerful. What are your thoughts on this? Would you have preferred that the justices stay involved or are you glad that they've gotten out of the process?
[00:16:41] Gladys Brandt: Oh, I'm I'm pleased that they've gotten out of the process. I think they're pleased too. Um and I think that uh the suggestion that this go to the probate court. I was uh somewhat concerned about what people might think of this article that came out in the paper this morning that the probate court would be the sole uh selector, say of trustees, but I'd like it understood that we have suggested that they bring in as many outsiders as possible and as uh Walter said, let the sun shine in and keep it open and I would suggest that they invite as many of the native Hawaiian organizations to help them or to help her in in her selection process. But I want to stick to this religion idea because I'd like it to be brought out clearly and be absolutely uh, well, satisfied in my mind that that wish of the princess is looked into.
[00:19:00] Speaker 1: And especially in our article we suggested that even though in theory, the public is the beneficiary of every every charitable trust that this particular charitable trust is unique for some reason and it really ought to be thought of as a native Hawaiian organization. Your thoughts on that?
[00:19:19] Speaker 2: Well, there's no question that uh the trust of the entire trust of the estate is the education of Hawaiian children. And in order to give credibility to any appointment process, it seems to me that you have to involve native Hawaiian organizations. Otherwise, you will not have acceptance by them of the trust the appointment.
[00:19:45] Speaker 1: Okay.
[00:19:46] Speaker 2: Yeah, I I would like to just mention that it's down about the fourth paragraph but we do say that we we believe that bishop estate should be thought of as a native Hawaiian organization and that the Kamehameha Schools Ohana should be considered the primary voice of the beneficiaries.
[00:20:03] Speaker 1: And who might be included in the Kamehameha school Ohana?
[00:20:08] Gladys Brandt: All I would say in that pool. Okay, alumni, parents, teachers, Hawaiian organizations, the whole gamut.
[00:20:19] Speaker 2: That is in fact the present trustees, if they get off their horse and uh accept this in the positive light instead of being negative.
[00:20:27] Speaker 1: Well, and we invited them to join us by the way, both in the newspaper and uh on the radio show today.
[00:20:32] Speaker 2: Well, I think Sam Risa is a good point. Uh if the trustees are interested in reestablishing their credibility, this is one area where they can do so by now reaching out to the native wine groups which they hadn't done but apparently are beginning to do now, and get them involved, try to get them involved with the AG, if you can do that without a conflict of interest or something. But establish now the means for moving forward in bringing about the process that's necessary. In
[00:21:04] Speaker 1: Gladys, in anytime you've got so many voices, somebody has to have the responsibility to to bring those voices together. And I guess in our article, we was sug we were suggesting that because of of her statutory authority as the official spokesperson of the beneficiaries, the attorney general would be the logical person to to listen to those voices and and try to to shape them in terms of something that can be taken to the court. But uh the trustees could step forward and and assume that role. Sure. They'd be even more important.
[00:21:35] Speaker 2: Uh in fact, the the Attorney General herself said that she was going to be one of the people that moved on this area. Okay. Well, you're listening to the Price of Paradise radio show. My name is Randy Roth. I'm here with Gladys Brant, Sam King, and Walter Hein. Uh the four of us plus Monsignor Charles Kekumano wrote an article that's on page B3 of this morning's advertiser, and the focus is on trustee selection. Specifically, when it comes to selecting future trustees of the Bishop estate, just how should that process work and who should be establishing those procedures, what should the criteria be, all of that is what we're talking about today. And if you would like to ask a question or make a comment, if you'd like to share your thoughts as to what that process should look like or what the criteria should be, please give us a call at 955-8821. If you're on a neighbor island, the number is 1-800-955-8821. Again, the topic is Bishop Estate trustee selection. Um Walter, any thoughts on Justice Klein's dissent? Last week, it was just a week ago that the four justices said, we're not going to do this anymore. Justice Klein said in pretty strong language that that he dissented. Um what does that mean? Could he possibly personally make decisions in the future? Or it just seems kind of odd having a four to one decision on this. I don't think so. I think the, as I recall, the will, the will says, selection shall be by a majority of the trustees, I'm sorry the majority of the justices. And if you have only one trustee with justice willing to act, why do I get these groups confused? There must be a reason behind it, you know. There's five of five of everything it seems. Well, I'm I'm thinking of a little more than that, but that's okay.
[00:23:36] Speaker 1: Oh. Uh well, where was I? Where you're talking. At any rate, the the the will seems to restrict the decision of select selection to a majority of the trust justices and not just to one. I don't see how one can operate in this sphere by himself. So as long as you've got three that don't want to do it, the other one or two cannot on their own. That's way I look at it. Okay. Well, we've got a bunch of callers on the line. Let's start with Richard in Manoa. Good morning, Richard.
[00:24:11] Richard: Uh good morning. I'd like to ask a question in regard to a couple of Judge Hin's comments. He said that politics is politics is politics, and he also said that he would like to see the selection process be as open and as transparent as possible. Those two statements seem to me to be uh rather inconsistent. Is it possible to have an open, transparent system and still have politics be politics be politics. And, secondly, Well, hang on. Hang on, Richard, I'll come back to you. That's a very good question. Walter Hein, what's your answer?
[00:24:45] Walter Heen: It is possible. It is possible. You can have politics, but politics which everybody really realizes and understands is politics. And you can have and this is the open process that I'm talking about. You're saying where we run into trouble is when we pretend that politics isn't involved and it's going on, but it's under the table. You're saying as long as the process, the criteria, who's making the decision, who's responsible, who's accountable, as long as everything is on top of the table, then it's okay to admit that politics is invariably going to be a part of an important decision like this. Certainly. You can't go sticking your head in the sand just because you don't like the word. Okay, well, I agree with with Walter. Do we have politics in the church, we have politics of wherever it is, you know. Corporations. Well, and I guess our little broken trust group we have we have politics. We always look to Gladys to resolve any kind of problem that we're having. That's right. I thought I raised a problem. Richard, you had another point. Yeah, a follow-up question. Once a selection selection is made and announced, is it contemplated under what has been discussed that and a group's party could appeal that decision?
[00:25:54] Speaker 1: You mean once the probate court makes a decision? That's correct.
[00:26:00] Walter Heen: Um let's see. We hadn't thought about that, but uh I suppose it's possible. Um it would be rather anomalous, though. I I want to make sure I understand the question. Richard, you're saying that if the probate court selects X as trustee, can that be appealed? Yeah. If if you set up a process and the probate judge didn't follow the process, then I think that would be appealable. I agree I agree with that. So the key is having on top of the table, in written, clearly articulated form, process and criteria. Yeah, And criteria. Okay. Richard, thank you for your call. We go to from Honolulu. Good morning, Kalani. Good morning. How are you today? I'm fine, and you're on the air. Thank you. Uh, I was wondering, uh, I must have missed something within the will because I don't see where this gets to be an exclusive Hawaiian trust.
[00:26:56] Speaker 1: Well, there there are two references to members of the Protestant religion Oh, I'm sorry, you're saying Hawaiian Trust. I've heard someone say that it should be elevated into the exclusive Hawaiian native Hawaiian Trust.
[00:27:09] Speaker 1: Okay. Well now, Walter, uh Kalani's making an interesting point because when it talks about educating boys and girls, it doesn't talk about native Hawaiian. Later on when it's talking about education and support of orphans and indigents, there it specifically talks about preference for native Hawaiians. Um Kalani is asking, how do you take all of that, anything else that's in the will and translate that and I'm I don't know why I'm looking at you, the five of us, the five of us said it should be thought of as a native Hawaiian organization. But how do you get from the will to the point that the five of us have have gotten to which is to say, it ought to be thought of as a native Hawaiian organization?
[00:28:27] Walter Heen: Because, as we pointed out earlier, you have to go back to the intent of the princess. And the context in which the will was drafted, and the context in which she was motivated to do this, clearly indicates that she had concern for native Hawaiian children and the fact even then, that they were being left behind in the educational process. So you're looking beyond what some people would call the letter of the document. You're looking at the context and and putting it all together and coming up with what in the article, we referred to as the spirit. Could I Could I add to that, too? Absolutely. No, I'm I'm going to come back to you, Kalani.
[00:28:35] Speaker 2: The uh first trustees, all five of them, one of them was her husband, Wier, um, adopted the policy that everybody who was admitted had to have some Hawaiian blood. Now, uh they knew her what she wanted and that policy was adopted way back when the will first took effect. Um That's an interesting point that is it only Hawaiians? If you went up there to Kamehameha now and asked all these kids, what are you, then a person who's 7/8 Japanese and 1/8 Hawaiian, what's he going to say? Is he say going to say Hawaiian or I'm Japanese? I think that study has been made and only 30% of the bodies said they were Hawaiians.
[00:29:25] Speaker 1: Um, Kalani. Yes. I bet you don't agree with that. Well, it doesn't say that in the document. What it says in the document is what what is what the document says. Okay. So then you could speculate upon her intent, but you have to you only go to the intent if there's some confusion within the document itself. Okay. Now, when I read the document, you're correct. There's uh more than one class of beneficiaries, but there is clearly the uh a directive within the will about the curriculum. And I think that they need to meet their primary trust responsibility before they go into their secondary trust responsibilities. Okay. So whatever class of beneficiaries you want to open this up to, to a partial Hawaiian blood or uh as being a an exclusivity, even with all those Hawaiian children, they need to uh clearly fulfill their primary trust responsibilities for basic English, not Hawaiian, a basic English education before they move on to the higher secondary educational goals, which is clearly established within the will. Why are they going ahead and getting college scholarship when they haven't even met their basic educational responsibilities for this uh uh exaggerated small class of trustees. Kalani, stay on the line, because I want to I want to come back to you, but you've you've raised another issue. What what I'm hearing from Kalani is that he's coming at the will from the direction that many, many people in Hawaii uh come from, which is is that of of reading it literally and saying, you know, we've got to adhere to what the letter of that will says, whereas there are a lot of other people that say, especially after a long period of time, you've got to try to figure out what she was really trying to accomplish.
[00:34:27] Speaker 1: Wait, wait just a second. I'm just saying that we've got kind of a basic disagreement as to how one goes ahead in interpreting that document and in applying that document. But specifically, Kalani, who initially raised the issue of of whether Walter and and the rest of us are correct in suggesting that it should be thought of as a native Hawaiian organization, has taken it to to a couple of other issues. For example, the will suggests that it should be a vocational type curriculum as opposed to college preparatory and Gladys, I don't know if you've got any thoughts to share. That wasn't actually my my statement but that's close. Okay, okay. Let me just get our thoughts on what we think your statement was, and then I have for sure going to come back to you. Gladys Brant, um, the will says, a school for boys, a school for girls and we've got one school now for boys and girls. And the will talks in terms of of something that causes many of us to think of vocational education and instead you look at Kamehameha school and you see something that's really primarily college preparatory. How do you feel about those changes from the language of the will? Were those good changes, bad changes? Your thoughts? Well, I think with time one needs to keep in stride with what society is demanding of our citizens. And I think what Kamehameha has done has tried to meet the demands. I think as long as we keep to the true course as to what the princess had. Certainly we all know that we have to change with the demands of time. So, so at the core of what you think the princess wanted was focus on native Hawaiians and focus on educating children. am I do I have it right because I I don't want to misstate? You know, I think in time, at times we we get puzzled about what we mean by native Hawaiians. Uh if I recall, Walter, the will did say Children of Hawaii. The only time it mentions native Hawaiians is when she refers to indigent children and then the native Hawaiian comes into play. Uh we know that at that time that Children of Hawaii meant I'm native Hawaiian, but as time went on I like to keep saying this, after all, she didn't marry a native Hawaiian. And so I think what we've done through the years given preference to the Hawaiian children and I'm sure society has accepted that. I do anyway. I don't what is what is a native Hawaiian? We're puzzled as to that. Now when we come about the vocational versus college prep, as I said before, we need to keep in stride with the demands of our time. What the princess wanted was to educate the children and we educate them to meet the needs in order to serve society. I think that's what we when we talk about putting the two schools together, it appears that at that time economics played a large part and so that came into play.
[00:38:00] Speaker 1: Okay. Kalani, you've you've focused, Kalani, you've focused our attention on some really important issues here. We're going to have to move on, but I want to give you Kalani, I want to give you the last word on this, but but we are going to have to move on soon. Go ahead.
[00:38:14] Kalani: Well, I guess it's pretty clearly established that it's not a Native Hawaiian situation, that there's only one area where they talk about giving a preference and that shouldn't be exaggerated in exclusivity and that issue is in court now. But my second comment was is that my second point was is that they're giving. It's not if they're vocational or college prep. But what it is is it says that they're supposed to give a basic education in English, ethics, morals, great good and industrious men and women, so on and so forth. But and then it says specifically that it needs to meet this trust responsibility before it goes on to other responsibilities. So if there's like, say, 100 children that need to learn this basic English education, you can't take five of those children and move them all the way up through college and ignore the other 95.
[00:39:06] Speaker 1: Well, I disagree. Yeah. Well, that's fine. Okay. I know what the document says. Thank you, Kalani. We we appreciate your call this morning.
[00:39:13] Speaker 3: He was a strict constructionist. That's the that's the legal term, strict constructionist. Uh, we moved to Desmond. Well, I'm a strict constructionist, too. So, maybe uh, well, anyway, we'll move on. We'll go to Des- we'll go to Desmond in Kai- Kai-Muki. Is this Desmond Burn?
[00:39:30] Desmond Burn: It is, Randy. Desmond Burn is the head of common cause here in Hawaii and has had an interest in the Bishop estate for a long time and has published a lot of his thoughts in various places uh over the years. Desmond, what do you have for us this morning?
[00:39:45] Desmond Burn: Well, in my article this morning was it mentioned that uh the commission on judicial conduct 3 years ago, it was common cause who went to that commission to obtain an opinion. And our position was it was compromising the independence, integrity, and confidence in the judiciary. So my first question is, how come it's just common cause took that route and we never heard anything at that time from lawyers, law school professors, uh the bar association or anybody else who should be an advocate for the judiciary.
[00:40:17] Speaker 1: Stop, stop. Stop, Desmond. He is getting personal. This is hurting too much. Not only that, I filed suit 26 years ago. Okay. Well, Sam is off the hook because in 1971, he filed a lawsuit arguing basically what common cause was was asking for 3 years ago, which is that the justices get out of of this process. So Sam, you're off the hook. But Desmond really does ask a very good question. Uh, where were the lawyers? Uh, where were the law professors? Where were the judges? Where were you know, just other interested stud- um- citizens?
[00:40:51] Speaker 3: Where were the justices of the Supreme Court? And and I suppose Desmond, uh all I can say is is better late than never, but I think I think you're right. I think a lot of us should do a little bit of soul searching and um and hopefully learn something from this situation. Learn from from how bad things can get if people look the other way and and don't uh take action. But let me see if anyone has has any other thoughts. Uh Walter Heen?
[00:41:18] Walter Heen: You've said it well. Okay. Yeah. I had I had one little point, there, where the justices say that this only binds them for now. Right. They could change their minds in the next court could do it the next justices if they fall the majority could come back again. And so don't give up.
[00:41:39] Desmond Burn: Randy, I got one final point. Um, we are surprised or continually surprised in a way when a lot of people say, well, the the Supreme Court justices have an obligation to select the trustees. And I don't know what's taught in civics 101, but I understand that nobody, absolutely nobody in this country can impose in their will upon the justices of a state supreme court. And I'm continually disappointed that people the Bishop estate is important, but people don't, but, far more important is the integrity of the court, and nobody can impose on it. I don't know why that's not understood by Hawaiians, a lot of people in this state. It it's just amazing.
[00:42:26] Speaker 1: Desmond, let me get Gladys's thoughts on what you've just, Gladys, are you in agreement with what Desmond was just saying? Is this is this something that cannot be imposed upon people generally, or justices in particular, is this something that uh, do do people understand what Desmond was just trying to describe?
[00:42:46] Gladys Brandt: Yeah, I think I'll leave it up to the judges. I I'll leave it up to Walter. You know, everyone who's appointed as a trustee or who is asked in a will to make a selection can say, I don't want to do it. There's no obligation. There's an- there's a moral obligation, perhaps, to adhere to the testator's wishes, but at the same time, nobody can legally require you to to perform the function.
[00:43:14] Walter Heen: Furthermore, she was related to some of the members of the Supreme Court at the time that this will was written. That's true. Yeah, so she had advanced knowledge that they would be very happy to carry out her will.
[00:43:24] Speaker 1: Desmond, I appreciate your call in a minute ago, I said uh what Desmond was trying to say and that that didn't capture at all what I meant to to imply because you were your usual eloquent, articulate self, you said it quite well and and I personally agree with what you said.
[00:44:05] Desmond Burn: And if you'd like to ask a question or make a comment, our number is 955-8821 or if you're on a neighbor island, the number is 1-800-955-8821. We would also suggest that you make a point of watching Channel 2 news tonight at 6:00 and at 10:00. We anticipate that there'll be a report on this radio show. Rod Antone, uh the ace reporter for Channel 2 is down here putting together a report, and we've got Buddy the cameraman assisting him on that. Again, tonight at 6:00 and 10:00 Channel 2 news. We go to Peter in Kailua. Good morning, Peter.
[00:44:42] Peter: Good morning, Randy. A couple of comments. Uh as to the uh wisdom of the Supreme Court Justice stepping down and this function. I think that was very very wise on their part. Of course, they've already set the precedent. You mentioned that in your broken trust article in August, where the city in the City Smith Trust, they declined to uh appoint trustees, even though that particular will uh gave them that power. I was one of the surviving trustees in that one, and and Noah was intimately involved. They've already set their own precedent.
[00:45:21] Speaker 1: Well now, that's interesting. I I I've never heard of any of the the particulars of that. Sadie Smith in the late 80s evidently asked the justices to select trustees of a trust she set up or wanted set up. Is that a charitable trust?
[00:45:36] Peter: Yes, it was. So in in in concept at least, it was quite similar to the Bishop Estate situation, and yet there the justices said, no, we're not going to do it.
[00:45:44] Speaker 1: Do we have your name and address? I'd like to get a hold of you.
[00:45:48] Peter: Yeah, Peter, how are you, Sam? Oh, Peter. Oh, Peter. Hi, Walter.
[00:45:53] Speaker 1: Uh, anything else, Peter?
[00:45:54] Peter: Yeah. Uh regarding the criteria for the selection of new trustees, seems to me that while it is a good idea to get the views of the Ohana or the Napua uh people which compose uh composers of the faculty and and uh students and members and so forth, and the parents. Uh the Bishop Estate affects so many people outside of the schools that someone should be some criteria should be set force that they would represent the public as a whole because the particularly lease negotiations, you know, the lease for and negotiations and the lease to feed conversion the Bishop Estate is just taking position instead of just so adverse to the interests of small people, particularly retirees and these negotiations. Can somebody give some thought to that?
[00:46:47] Speaker 1: Yeah, you know, Peter, I think one reason we suggested that the court actually um order the attorney general to to listen to the various suggestions and and put together the specific process and and um criteria is that in in theory, the attorney general does represent the beneficiaries of every charitable trust and and that is the public at large. It includes more than just the the Kamehameha Ohana. So while we're suggesting that the Kamehameha Ohana should be thought of as the primary voice of the beneficiaries, um we felt that the attorney general should be involved in this, and by law, the Attorney General is going to be watching out for more than just the Kamehameha Ohana. Um anyone else in the room have thoughts on on what Peter is sharing with us this morning?
[00:47:37] Walter Heen: Yeah, well, I I think you we say at the last paragraph, that even among the trustees, the appointment should not be based strictly on competence and I- should not be based on ethnicity, but on competence and character.
[00:47:49] Speaker 1: Yeah, also, it's not our intent in the uh in the we're getting to the wording and the intent. Um it's not our intent to exclude everybody except Native Hawaiian organization. Certainly, the general public and anyone interested should have an input. So, we're saying in terms of setting up criteria and procedures that everyone who has an interest should be listened to, and that the Attorney General is a clearing house of sorts, and her job is to kind of focus these disparate voices and come up with something specific and something practical where openness is the watchword. So we would like a lot of Native Hawaiian involvement, but not limited to that. Gladys?
[00:48:28] Gladys Brandt: Yes, I agree. I think that we were very much together on the fact that an ethnicity would not play the primary uh part in the selection of future trustees. Okay. Character and integrity and competence.
[00:48:46] Speaker 1: Character, integrity, and competence. I like that. That captures the the whole. Okay, yeah, yeah. And we have some other criteria that we've suggested we're going to get to in a minute. Sam?
[00:48:56] Speaker 3: Well, I just as a as a little footnote there. Um I've forgotten what the thought was now.
[00:49:04] Speaker 1: Why why you're Oh, the the the it should be noted that the Supreme Court also gave up choosing trustees for the Luna Lilo Estate. And uh of course, that was a king, so they accepted that one. Uh I don't think Justice Klein dissented on that one.
[00:49:22] Speaker 3: I don't know, don't know.
[00:49:23] Speaker 1: Okay. Well, we've got some people who have been waiting patiently, and I want to get to them and then also there's some more criteria that we've suggested. And and the spirit of our article this morning isn't that we're saying this is the way it ought to be done. Uh we got into this initially to support the Napua group and the Nikumu group and we see our role is secondary to what they're doing. And we've simply suggested some thoughts that maybe they could use, some of, maybe they'll throw some out, but as this process proceeds, uh we would just like to be a supportive uh of the key players as we can possibly be.
[00:49:58] Speaker 1: Let's go to Ish from Ka- Kahalu. Good morning, Ish.
[00:50:03] Ish: Aloha.
[00:50:05] Speaker 1: Aloha.
[00:50:05] Ish: First of all, I want to back up a couple of um months ago over here. I've been with uh various organizations. I'm a Kamamiah graduate and I'm a professional educator and have and have been one for 34 years. Um and I want to say that before the broken trust article came out, we couldn't get our foot in the front door. Nobody would listen to us, nobody would pay attention to us. Granted, we had the march and um there was some degree of uh support support for that and uh interest by the media and and by the public. But until broken trust came out, nothing happened. So to all those of you who are involved in that, I know you have nothing to gain. Certainly, Mon senior Pecamano would want to enjoy his last years and so would Gladys, rather than get embroiled in something like this, so it would have to be from a position of public service rather than anything else.
[00:50:56] Speaker 1: Ish, that's really very nice. Uh Gladys, any any reaction. I was just wondering how a person with the name of Ish graduated from Kamamiah.
[00:51:06] Ish: Well, actually, that was a uh That is a very very good point and I think it underscores what we've been talking about, that that most of me was not Hawaiian, but that portion of me that was Hawaiian made me eligible to go to the school. Okay. And the other part of me, which was not Hawaiian, got as much of an education if not better than that portion of me that was Hawaiian. Okay.
[00:51:28] Speaker 1: So, if we're talking about being there to educate Hawaiians, it educates a lot of non-Hawaiians as well, who are in the same bodies.
[00:51:35] Speaker 1: Okay. Ish, thank you so much. But basically, my my question at this point over here uh is that I still am concerned with the selection process for the trustees. Now at the time of the creation of the um uh will, there were no beneficiaries. Now there are and there have been some for over 100 years. Uh I think that as a beneficiary, uh my major concern would be the quality of the trustee as a result of the selection and winnowing process that begins long before there is an opening that takes place. I think we have had at least to my knowledge, and the people I have known, some excellent trustees such as Papa Laiman and uh Frank Mdkiff who uh I thought were absolutely excellent people. Even those that I argued against such as Maski Takabuki turned out to be excellent. And uh so my my particular feeling here now is whether one judge selects or whether a group of them selects, the confidence of the community is going to either be strengthened or undermined by the selection process that is created that allows for input from the people who are going to be most directly affected. I think more than anything else, the major concern over here is that is the standard by which all things Hawaiians are all things Hawaiian are judged and compared. So if you have a problem here now with what is Hawaiian, the standard by which we measure and the definition that we look for is that which comes from those schools. And so therefore, if we're talking about the state, if we're talking about Hawaiianness, we have to go to those definitions that come from that area. And so everything is affected, and our confidence is undermined when we have the types of political chicanery that have um created at least in my mind, the last three trustees. And so hence, my particular concern over here is that we improve the the winnowing process and the selection process, and I just simply wonder how allowing one judge to replace the collective um uh input of five justices improves that.
[00:53:44] Speaker 1: Ish, um I'm going to have to move on, but two things. Number one, I I think I'm speaking for the group and saying that that we're in basic agreement. And we really don't think one individual, be it a judge or a non-judge, should be making this decision that really it needs to involve a lot of people in procedures and criteria that are on top of the table where we say openness has to be the watchword. So, I I think we're in in total agreement with you on that. Also, you're suggesting that we need to be doing this, developing this now even though there isn't an opening right now. Sam King, I'm reminded, you were quoted a a week or so ago. I think on Channel 2, as uh they were saying, but gee, why do this because there isn't an opening right now? What's your reaction to that?
[00:54:29] Speaker 3: Well, I I hate to to keep uh picking on any current trustees, but uh we hope there will be some openings soon.
[00:54:40] Speaker 1: Ish, you're saying go for it. Um, but you're saying they're probably We anticipate they're going to be some openings soon. And in any event, the procedure should be set up ahead of time. Exactly. Yeah, if you've got specific names in mind and an opening in mind, then I think you're going to have more, you know, backward thinking to where people are backing into criteria that fits a specific candidate and a specific opening. If uh you're doing it now when you don't have an opening, presumably the process and the criteria will will be better.
[00:55:11] Walter Heen: That's right, that's right. Okay. Um And it it establishes for future generations the kind of person that one might want to become in if one really wants to be a bishop of state trustee. Exactly. Okay. That reminds me of the Frank De Lima song. Exactly. Okay, Ish, thank you for your call. We really do appreciate it.
[00:55:30] Speaker 3: You can do it without polishing the trust the Justice's seats. Yeah, right. And it Okay. Well, we'll move on from there. Uh and before we we go and I've got two more callers who've been waiting a long time where we're going to for sure get to them, I wanted to mention that one of the criterion that we list in our article this morning, uh includes an explanation that we think it was a mistake when the justices decided to put a an age limit on being a trustee. And I just want to make sure that listeners understand that that was a criterion that I fought for in our group discussion. Uh mostly I was a reporter for what the others felt should be there, but I personally think that the Capuna in our community, be they Native Hawaiian or otherwise, often times have the most to offer and I personally think to simply arbitrarily say because a cer- a person has reached a certain age that they shouldn't even or can't even be considered, I personally find that that's uh shortchanging the community. So, that was one of the criterion that we uh listed and discussed. Let's go to uh Wayne in St. Louis Heights. Thanks for waiting so long. Uh good morning, Wayne.
[00:56:38] Wayne: Good morning. Um I think what an earlier caller uh named Kalani mentioned, threw a lot of light on the subject, and he pointed out that in the will that it does not seem as if the school was intended to be just for Native Hawaiians or even to emphasize on education uh of on Native Hawaiian culture and values, but it was uh intended to be as
[00:57:00] Speaker 1: school for the teaching of English for morals uh vocational uh training. And seems to me that it from reading the will, it looks as if that the school was intended to be a, you know, an ordinary school, pretty much like what they had like the other school that were founded at the same time like Punaho and Mid-Pacific or Iolani. Uh, I I think that seems that that that point seems to have been lost and and I think the the other caller brought up a very interesting point. The other thing that I'm concerned about
[00:57:32] Wayne: Wayne Wayne before you leave that, um, I'm going to give Walter He a chance to respond to that, and I want to let people know if they would like to read the will in its entirety, as amended by the two codicils, uh, if they have access to a computer and you can go to any public library and and use the computer, go to popweb.org, that's p-o-p-w-e-b.org o-r-g, and you can see the will in its entirety on our homepage. Walter He any quick reaction to Wayne's comment.
[00:58:02] Walter Heen: Well, I think if you examine as I said earlier, the intent of the princess, it was to uh prefer if you will native Hawaiian children. Another point that I wanted to raise earlier too on a personal note, I attended Kamehameha in the 7th grade and part of the 9th grade. I told Gladys I left because I couldn't stand the regimentation, but part of it was that at that time it was strictly a vocational educational school, and that was not for me. I knew that I wanted to go on to become a lawyer and I wasn't going to get the necessary background there.
[00:58:38] Walter Heen: So the changes that they've made have kept up with the times and I think it's a better organization, a better school now than it was then.
[00:58:45] Wayne: Okay Wayne you had another point to make and if you can make it quickly Yes, I think another point that comes up again and again is the the fact that the should the school is supposed to be of a Protestant character. Now I think that that is also pointing out not only by the fact that the teachers were and the trustees were supposed to be uh Protestant, but also the will states that the teaching of morals in addition to English were were supposed to be absolute criteria, uh, and uh, I rather subjects for for the curriculum.
[00:59:17] Wayne: Uh, but it seems to me that if the school is going to be predominantly or exclusively native Hawaiian in terms of student body, I think you have some of an anomaly if you have a a you know, what is supposed to be a religious school, it's that's only for one race of people. I don't think most denominations or sects or or religious organizations, uh, would go along with that sort of thing. But it seems to me that if the school is supposed to be a Protestant school, uh, why aren't the the trustees then picked by a religious organization such as a church or the association of churches?
[00:59:51] Wayne: Okay Wayne you made some good points and we're running low on time, so I'm going to quickly go to our two people who've been waiting a while, Jerry on the North Shore, you're on now.
[01:00:00] Jerry: Hello.
[01:00:01] Wayne: Yes, you're on the air.
[01:00:02] Jerry: Thank you, yes. Uh this is Jerry from the North Shore and I'm the class of 54 Kamehameha. I really want to commend you five people. You're marvelous and I look at the five of you as the guardian angels of the will. My question has to do with the education of the Hawaiian children, not so much of the trustees selection selection, but in the will, I know we look at Kamehameha schools as a beneficiary, is it possible for the estate to invest more money into the public school so that we educate all the Hawaiian children?
[01:00:36] Wayne: You know Jerry that's um, that's a it's a good suggestion and it it ties in with a lot of the outreach programs that were um terminated a few years ago. And and I think because we're running out of time and because that's such a good point, I'd I'd I'd rather just take that as a comment, but that's something that the community should be thinking about. Um, but it's a little bit off our topic of trustee selection and we're running out of time, so I'm going to take that as a comment and move on. Really appreciate your call this morning, Jerry.
[01:01:08] Susan: Susan from Honolulu can you can you share with us in about 20 seconds what you have to say. Yes, I worked at the estate 39 years ago when Frank Midkiff and Arthurton Richards and Murray, Wilson, Murray and Lyman from the Big Island and Wilson Moore were all trustees, and they administered the spirit of the will. They the there was not the wheeling and dealing that that uh uh goes on, and I took minutes at those meetings, and now they've done away with that.
[01:01:36] Susan: There's a lot of things that have been changed by the current trustees and I think that they ought to go back to the old ways and look into the selection of the uh wonderful trustees that they had 35 years ago who were very fine, uh, people from the community, people who had integrity, competence and character, good character.
[01:01:57] Wayne: Okay, thank you, Susan. And some some people would say that's tied to the fact that in those days the compensation wasn't that large. Um, but we're down to just two minutes, which means that each of the three of you has less than a minute to share any parting thoughts that you might have.
[01:02:14] Samuel P. King: I I just want to emphasize that what we're trying to do is just be helpful and that all our suggestions are open for argument and disagreement and some of our ideas came already from comments made by members of the alumni association of Kamehameha and Napua and Nakumu.
[01:02:32] Wayne: In fact, we had some disagreement among ourselves. I I suggested one of our criterion should be that they must know how to spell fiduciary. And you said your mother once told you no wisecracks when politics is involved. That's right. Okay Walter He any closing comments?
[01:02:49] Walter Heen: Um, I know that there is apprehension in the Hawaiian community about where this situation this controversy is going to end up. And I would like to paraphrase an old patriotic expression. Vigilance is the watchdog of the welfare of the Bishop estate.
[01:03:09] Wayne: Okay. I like that. Gladys, last few seconds. Any words of wisdom?
[01:03:14] Gladys Brandt: I don't know it's wisdom, but um evidently the callers to the come and seemingly are appreciative of the work that this broken trust has done. I would like to say that, just as Sam and Walter indicated, we just wish to support Napua, and we wanted to get things out in the open and get things going so that the Hawaiian community and the public at large would look to Kamehameha as an institution of high worth which it is. I must say Randy that it it has not been easy for this whole thing, but it's been wonderful things.
[01:04:00] Wayne: You said that you said that so well. I wish I had said that. Thank you everybody. Jeff is our director of operations, Susie Roth our producer, Wallie and Cassie Roth helped out. This is surprise Paradise Radio show, Aloha.