BY JIM DOOLEY – An anonymous mother and child who collected a $7 million legal settlement from Kamehameha Schools in 2007 will remain unidentified even when they testify in a Hilo trial next month over the schools’ demand for return of $2 million.
Circuit Judge Greg Nakamura said he plans to allow the pair to testify “by telephone” to preserve their anonymity. The pair claim their lives have been threatened because they challenged the schools’ Hawaiians-first admissions policy, then accepted $7 million to drop their federal lawsuit when it was appealed to the U.S. Supreme Court.
Attorneys for Kamehameha Schools have protested Nakamura’s decision, calling it unprecedented and arguing that trial jurors will be prevented from adequately assessing the veracity of the defendants because their demeanor, facial expressions and overall appearance will be hidden when they are called to testify.
“How can you assess anyone’s credibility when they’re cowering in a cave somewhere?” said Paul Alston, lead attorney for Kamehameha Schools.
But Nakamura granted the anonymity request from defense lawyers, who have argued that the physical safety of the pair – identified only as Jane and John Doe — could be jeopardized if their identities are made public.
“The Does claim to be deathly afraid that they will be harmed physically, not just shunned socially, if their identities become known,” Alston said.
“These allegations of fear are unsupported by the facts,” Alston said.
Ken Kuniyuki, attorney for the Does, declined comment.
Jane and John Doe sued Kamehameha Schools in federal court in 2003, alleging that the schools’ admissions policy, which favors students of Hawaiian ancestry, violates federal civil rights laws.
The Kamehameha Schools were established under the 1884 will of Princess Bernice Pauahi Bishop, who endowed the institution with vast landholdings that formed the basis for the non-profit’s present day fortune, estimated at $7 billion to $8 billion.
Formerly known as the Bishop Estate, Kamehameha Schools’ wealth and charitable mission give the institution a central role in Hawaii society. Thousands of part-Hawaiian students, from kindergarten through high school, are educated annually at campuses on Oahu, Maui and the Big Island.
Tens of thousands more children of Hawaiian ancestry receive outreach educational assistance annually from the schools.
Kamehameha Schools is one of the wealthiest charitable institutions in the world and is the largest private landowner in Hawaii.
Terms of the 2007 legal settlement were a closely-held secret until private attorney John Goemans disclosed the $7 million figure to the Honolulu Advertiser newspaper in 2008.
Goemans filed or instigated a variety of legal challenges to policies favoring Native Hawaiians, such as the admissions criteria at Kamehameha Schools and voting rights at the state-supported Office of Hawaiian Affairs.
He helped plan the 2003 suit, finding the plaintiffs and recruiting California lawyer Eric Grant to litigate it. Goemans died in 2009 of pancreatic cancer.
Goemans insisted he was not bound by a confidentiality agreement which covered all parties to the $7 million settlement.
The agreement contained a $2 million penalty clause for any breach of confidentiality.
Goemans said he was not a party to the deal, never signed it and personally opposed it.
He also asserted that Kamehameha Schools, which enjoys tax-exempt status from the Internal Revenue Service, was obligated to disclose the settlement in its tax returns and in detailed financial statements the institution must file annually in state court.
Kamehameha Schools sued the Does and private attorney Grant on the Big Island in 2008, demanding the $2 million penalty payment.
Before filing the suit, the schools’ lawyers said they would honor the Does’ anonymity as long as possible but warned that litigation could lead to exposure of their identities.
Jane Doe then said in a sworn affidavit she and her child feared for their safety if their names were made public.
Jane Doe said that more than 1,550 reader comments were posted on the Advertiser’s web site after the settlement amount was disclosed.
“Many of them are extremely critical of us. Some include threats of violence against us,” she said.
“I have lived in Hawai’i for many years,” the affidavit continued “The negative comments and threats posted to the Honolulu Advertiser’s February 8, 2008 article are entirely consistent with my experience with many local residents regarding the admissions policy of the Kamehameha Schools.”
If their identities become public, she said, “we are prepared to move and go into hiding.”
A different lawsuit that also challenged Kamehameha’s admissions policy was filed by in 2008 in federal court by four anonymous, non-Hawaiian students.
Those plaintiffs dropped the action after the court ruled that their identities must be disclosed.
Federal Magistrate Judge Barry Kurren ruled that he didn’t think purported threats to the four justified anonymity.
“At most, plaintiffs are vulnerable children who have a reasonable fear of social ostracization,” Kurren wrote in an opinion that was upheld on appeal.
Schools attorney Alston noted that a handful of non-Hawaiian students have been enrolled at Kamehameha, most recently last year.
Prominent Honolulu media attorney Jeff Portnoy called the Hilo plan for testimony-by-telephone “very strange and highly unusual.”
“I’m not aware of any case, certainly in Hawaii, where a party in a civil case has been allowed to testify anonymously and outside the presence of the judge and jury,” Portnoy said.
University of Hawaii professor Gerald Kato noted that there have been instances in which witnesses in criminal cases have testified from behind curtains or screens to protect them from threatened reprisals.
“This seems to be unprecedented in a civil case,” Kato said.
“I think this raises concerns about using public proceedings for anonymous parties,” he said.
In an August 30 hearing, Judge Nakamura said he was inclined “to allow (the) Doe defendants to testify from o/s (outside) the courtroom,” according to minutes of the hearing.
He said that would “allow Does to testify by telephone” and still leave the courtroom “open to the public.”