Politics in Hawaii: Is Something Broken?

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In the early ’90s, University of Hawaii law professor Randy Roth edited and co-authored The Price of Paradise, two volumes that explored the hottest political and economic issues facing Hawaii. In 1997, he co-authored the “Broken Trust” essay, published by the Honolulu Star-Bulletin, that exposed the mismanagement of the Bishop Estate, as it was then known, prompting an investigation that led to the removal of the board of trustees. He worked for a year as policy advisor to Gov. Linda Lingle, grappling mainly with reforms for Hawaii’s state-run public schools.

Roth has seen how things are run in Hawaii. Or, more to the point, how they aren’t run as well as they should be. In this essay, he identifies the two biggest problems, as he sees them, in state governance—there is a lack of transparency and accountability. As he describes, these two traits affect everything from schools to courtrooms, keeping citizens in the dark and protecting public servants, even when they don’t actually serve the public.

Illustration by Kristin Lipman Photos courtesy of Randall Roth, Honolulu Star-Bulletin

Does it trouble anyone that we will be paying more money to the new football coach than we pay the fire chief, police chief, prosecutor, school superintendent, director of health, attorney general and chief justice, combined?

It may surprise you that this is not on my list of things about Hawaii governance that are “broken.”

You see, we know who made the decision, what it will cost and the source of the funds. We’ll be able to see how the team performs and then play Monday-morning quarterback on the question of whether the decision was a good one. From the standpoint of transparency and accountability, this is about as good as it gets. So, while I think we are paying football coaches way too much, the politics of this decision strikes me as “not broken.”

From my experience co-authoring the “Broken Trust” essay in 1997, advising the Lingle administration, and observing local politics as a law professor since I arrived here in 1982, I’ve become convinced that what is broken in local politics is the lack of transparency and accountability. At so many levels, in so many of its doings, Island politics are opaque, and those who operate in its protective murkiness face no consequences, whether they literally do wrong or merely fail to do right.

I’ve also come to realize that this pervasive problem is, to some degree, self-inflicted. In a democracy, all government power derives from the people. We, the people, have a right to transparency and accountability, and a responsibility to insist upon it.

Yet the people of Hawaii often do not question even dubious politics, at least not publicly. I’ll do my best to explore this phenomenon in these pages.

How could I have been so naive?

I began to grasp the full extent of our political problem during the 1990s, when Supreme Court justices were selecting Bishop Estate trustees as political patronage, and deciding cases involving those same trustees.

When it became clear from numerous investigations that those trustees were committing serious breaches of trust, as even IRS reviews showed, and that the public would no longer tolerate such madness, the justices announced that they would stop selecting trustees. Then, on May 7, 1999, Judge Kevin Chang removed four of the five trustees from office, accepted Oz Stender’s resignation and began the usual process of accountability.

Flushed with the excitement of the time, I gave a speech predicting what would follow.

I forecast that the former trustees would be held accountable for having abused Princess Pauahi’s trust, and that those trustees would then seek accountability from lawyers on whose advice they would claim to have relied.

I predicted that those lawyers would be called upon to explain why they seemingly failed to report serious nonfeasance by their trustee clients, as was required of them by Probate Rule 42.

That wasn’t all: I said the justices who handpicked those trustees and decided their cases could be sued for any harm done to the trust; and that those justices would definitely be called before the Judicial Conduct Commission, and probably several other oversight bodies as well.

Because I taught such subjects to law students, I knew how Probate Rule 42 works; I knew the fiduciary duties of trustees and of people who voluntarily accept the power to appoint trustees of a charitable trust; and I knew the Code of Judicial Conduct.

Furthermore, the allegations of wrongdoing had been thoroughly documented—by then-Attorney General Margery Bronster’s civil and criminal investigations, the reports of court masters Colbert Matsumoto and Robert Richards, the findings of court fact-finder Patrick Yim, and audits by the accounting firm Arthur Andersen and the IRS. In case anyone has forgotten the severity of the mismanagement, the IRS threatened, in 1998, to revoke the estate’s tax-exempt status and refused to have any further dealings with the trustees as they had “a history of ignoring probate court orders, [and] master report recommendations.” The IRS said that Bishop Estate functioned less like a charity than as “a personal investment club,” one that, as I’ve described elsewhere in discussing the IRS report, “paid grossly excessive fees, gave preferential treatment to insiders, engaged in excessive lobbying, and involved itself, illegally, in state and federal political campaigns,” and much more.

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