Grant v. Kamehameha Schools/Bernice Pauahi Bishop Estate et al

Filing 89

OPPOSITION by Eric Grant to 50 Motion to Dismiss. (Attachments: # 1 Appendix of Non-Standard Authorities, # 2 Declaration of Eric Grant)(Grant, Eric)

1 Eric Grant (Bar No. 151064) Attorney at Law 2 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 3 Telephone: [phone] Facsimile: [phone] 4 E-Mail: [e-mail] 5 James J. Banks (Bar No. 119525) Banks & Watson 6 Hall of Justice Building 813 6th Street, Suite 400 7 Sacramento, California 95814 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] 9 Counsel for Plaintiff and 10 Counter-Defendant ERIC GRANT

ERIC GRANT, ATTORNEY AT LAW

11 12 13 14 ERIC GRANT, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA No. 2:08-cv-00672-FCD-KJM
DECLARATION OF PLAINTIFF AND COUNTER-DEFENDANT ERIC GRANT IN SUPPORT OF HIS OPPOSITION TO KSBE DEFENDANTS' MOTION TO DISMISS

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

) ) 15 Plaintiff, ) ) 16 v. ) ) 17 KAMEHAMEHA SCHOOLS/BERNICE ) PAUAHI BISHOP ESTATE; J. DOUGLAS ) 18 ING, NAINOA THOMPSON, DIANE J. ) PLOTTS, ROBERT K.U. KIHUNE, and ) 19 CORBETT A.K KALAMA, in their ) capacities as Trustees of the Kamehameha ) 20 Schools/Bernice Pauahi Bishop Estate; ) JOHN DOE; and JANE DOE, ) 21 ) Defendants. ) 22 ) ) 23 JOHN DOE and JANE DOE, ) ) 24 Counter-Claimants, ) ) 25 v. ) ) 26 KAMEHAMEHA SCHOOLS/BERNICE ) PAUAHI BISHOP ESTATE, et al., ) 27 ) Counter-Defendants. ) 28 )

Hearing Date: Time: Courtroom: Judge:

Oct. 31, 2008 10:00 a.m. 2 Hon. Frank C. Damrell, Jr.

Declaration of Plaintiff Eric Grant in Support of His Opposition to KSBE Defendants' Motion to Dismiss

1 2

I, Eric Grant, declare as follows: 1. I am the Plaintiff and co-counsel for Plaintiff and Counter-Defendant Eric Grant in

3 the above-entitled case. I make this declaration in support of my opposition to the Kamehameha 4 Schools Defendants' and Cross-Claim Defendants' Motion to Dismiss (doc. 50, filed July 9, 2008). 5 I make the statements of fact in this declaration of my own personal knowledge. If called as a wit6 ness in this proceeding, I could and would competently testify to the facts set forth herein. 7 2. In the following paragraphs, I refer to Defendants Kamehameha Schools/Bernice

8 Pauahi Bishop Estate, J. Douglas Ing, Nainoa Thompson, Diane J. Plotts, Robert K.U. Kihune, and 9 Corbett A.K. Kalama collectively as "KSBE." I refer to Defendants John Doe and Jane Doe, two 10 individuals whose true identities are known to me, using their "Doe" pseudonyms.

ERIC GRANT, ATTORNEY AT LAW

11

3.

Since 1990, I have been a member in good standing of the State Bar of California.

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

12 Since 2001, I have been a member in good standing of the Bar of this Court. 13 4. I have resided and practiced law in Sacramento County continuously since 1997. I

14 have been a solo practitioner since August of 2004. I am in the process of joining the 16-lawyer 15 firm of Hicks Thomas LLP of Houston, Texas, whose new California office I alone will staff. 16 5. I represented the Does in a federal civil rights lawsuit against KSBE, which lawsuit

17 attacked KSBE's "Hawaiians only" admissions policy at its K-12 schools as discrimination on the 18 basis of race in violation of 42 U.S.C. § 1981. The lawsuit was filed in June of 2003 in the United 19 States District Court for the District of Hawaii; it was styled Doe v. Kamehameha Schools/Bernice 20 Pauahi Bishop Estate, et al., No. 1:03-cv-00316-ACK-LEK (the "Underlying Litigation"). 21 6. While the Underlying Litigation was pending in the district court, KSBE was rep-

22 resented by California counsel working from California, namely, Kathleen M. Sullivan, then dean 23 of Stanford Law School; she alone argued for KSBE at the one and only hearing before the district 24 court on November 17, 2003. 25 7. The district court ruled in favor of KSBE and dismissed the Does' action with pre-

26 judice. On the Does' behalf, I filed a notice of appeal to the United States Court of Appeals for the 27 Ninth Circuit in San Francisco. Accordingly, the Underlying Litigation was pending in that court 28 from December 30, 2003 through December 5, 2006 (as No. 04-15044).
1 Declaration of Plaintiff Eric Grant in Support of His Opposition to KSBE Defendants' Motion to Dismiss

1

8.

In that appeal, KSBE continued to represented by California counsel working from

2 California, namely, Ms. Sullivan, and she alone argued for KSBE at the oral argument before the 3 3-judge panel on November 4, 2004 and at the oral argument before the 15-judge en banc court on 4 June 20, 2006 in San Francisco. 5 9. The Ninth Circuit likewise ruled in favor of KSBE and affirmed the district court's

6 dismissal of the Does' claim. On the Does' behalf, I filed a petition for certiorari in the Supreme 7 Court of the United States (docketed as No. 06-1202). 8 10. In that phase of the litigation, KSBE was again represented by California counsel

9 working from California, namely, Ms. Sullivan and the law firm Quinn Emanuel Urquhart Oliver 10 & Hedges, LLP in Redwood Shores, California. Ms. Sullivan was designated "Counsel of Record"

ERIC GRANT, ATTORNEY AT LAW

11 (i.e., lead counsel) for KSBE on the brief in opposition to the Does' petition. 12 11. While the Does' petition was under consideration by the Supreme Court, Ms. Sul-

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

13 livan on May 3, 2007 contacted me at my office in Sacramento County and proposed to continue 14 settlement negotiations on behalf of our respective clients. On May 8, 2007, I met Ms. Sullivan at 15 a restaurant in Pleasanton, California, where we conducted negotiations over a long lunch. 16 12. Over the course of the following three days, Ms. Sullivan and I continued to nego-

17 tiate by telephone and electronic mail from our respective offices in California. I recollect that we 18 spoke approximately a dozen times and exchanged at least thirty e-mail messages in that period. 19 13. On May 11, 2007, our negotiations consummated in a written settlement agreement.

20 On a separate page of the agreement titled "Approval as to Form," Ms. Sullivan and I executed a 21 provision that stated: "On behalf of our respective clients, we approve the foregoing Settlement 22 Agreement and General Release as to form." At KSBE's specific demand, I executed a separate 23 declaration confirming that the signatures of "John Doe" and of "Jane Doe" were genuine. These 24 executions were accomplished from our respective offices in California. 25 14. The essence of the settlement was an exchange by which the Does received mone-

26 tary compensation from KSBE for dismissing their pending petition for certiorari. To effect that 27 dismissal, I initiated (and Ms. Sullivan joined) a telephone call to the Clerk of the Supreme Court. 28 Based on the Clerk's instructions, Ms. Sullivan and I executed an "Agreed Stipulation to Dismiss"
2 Declaration of Plaintiff Eric Grant in Support of His Opposition to KSBE Defendants' Motion to Dismiss

1 the petition, which I submitted to the Clerk by facsimile from my office in Sacramento County. In 2 accord with that stipulation, the Clerk entered an order dismissing the Does' petition pursuant to 3 the Supreme Court's Rule 46.1. 4 15. Thereafter, KSBE discharged its financial obligation under the settlement by mak-

5 ing payments to my client trust account at my bank in Sacramento. The logistics of such payments 6 were co-ordinated by Ms. Sullivan and me. 7 16. I was present in California when I had the discussions with John Goemans and the

8 conference call with Goemans and the Does described in Paragraph 3 of the Statement of Undis9 puted Facts in Support of Plaintiff and Counter-Defendant Eric Grant's Motion for Summary 10 Judgment (doc. 81-3, filed Oct. 3, 2008).

ERIC GRANT, ATTORNEY AT LAW

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17.

As documented in the declarations and exhibits cited in Paragraph 5 of that State-

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

12 ment, the correspondence described therein was exchanged between attorneys James J. Banks and 13 Robert L. Esensten to and from their respective offices in Sacramento and Tarzana, California. 14 18. The legal proceedings described in Paragraphs 9 and 10 of that Statement occurred

15 in Sacramento Superior Court in Sacramento, California. 16 19. On March 31, 2008, I visited a webpage on KSBE's website, http://www.ksbe.edu/

17 about/facts.php. On that page, KSBE stated that it "is the largest private landowner in the state of 18 Hawaii." A true and correct copy of a printout of the page, with the quoted statement highlighted, 19 is attached hereto as Exhibit 1. 20 20. On March 31, 2008, I downloaded from KSBE's website, http://www.ksbe.edu/pdf/

21 ar07/annualreport07.pdf, a document entitled Kamehameha Schools Annual Report: July 1, 200622 June 30, 2007. On internally numbered Page 5 of that document, KSBE stated that "the fair value 23 of [its] total endowment grew by $1.39 billion during fiscal year 2007, increasing the overall en24 dowment fair value to $9.06 billion as of year end." A true and correct copy of that report, resized 25 to fit on 8.5' x 11' paper with the quoted passage highlighted, is attached hereto as Exhibit 2. 26 21. On March 31, 2008, I visited a webpage on KSBE's website, http://www.ksbe.edu/

27 article.php?story=20070514062928373. That page is a press release issued by KSBE's Trustees 28 on May 14, 2007, announcing and justifying KSBE's settlement with the Does. The press release
3 Declaration of Plaintiff Eric Grant in Support of His Opposition to KSBE Defendants' Motion to Dismiss

1 stated in part: "This means that the Circuit Court ruling stands . . . . The ruling from the 9th Cir2 cuit Court is a pono one for Kamehameha Schools and for kanaka maoli." A true and correct copy 3 of a printout of the release, with the quoted statements highlighted, is attached hereto as Exhibit 3. 4 22. I conceived the idea for this action on my own and sought neither the approval nor

5 the endorsement of the Does therefor. 6 23. I have not paid or reimbursed, I am not currently paying or reimbursing, and I do

7 not intend to pay or reimburse the Does or their counsel to litigate this action or any part of it. 8 I declare under penalty of perjury under the laws of the United States of America that the

9 foregoing is true and correct. Executed on October 17, 2008. 10 /s/ Eric Grant ERIC GRANT

ERIC GRANT, ATTORNEY AT LAW

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

4 Declaration of Plaintiff Eric Grant in Support of His Opposition to KSBE Defendants' Motion to Dismiss

Exhibit 1

Kamehameha Schools - Facts About KS

http://www.ksbe.edu/about/facts.php

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The Legacy of a Princess
Kamehameha Schools was founded by the will of Bernice Pauahi Bishop, a descendant of Hawaiian royalty, and the great-granddaughter of Kamehameha the Great. Kamehameha School for Boys was the first to be established in 1887 on what are now the grounds of the Bishop Museum in Honolulu on the island of O`ahu. A year later the Preparatory Department, for boys 6 to 12 years of age, opened in adjacent facilities. The School for Girls opened in 1894 on its own campus nearby. In the early years, the curriculum focused on manual and industrial arts.

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The 600-acre Kapalama Campus is the largest and oldest of Kamehameha's three campuses. A 180-acre campus on Maui, a 300-acre campus on Hawai`i, some 32 preschools on five islands and numerous extension education programs round out the statewide education system.

Between 1930 and 1955, all three schools moved to its present location Kaplama Heights - less than a mile ma uka of the old Bishop Museum campus. In 1965 the boy's and girl's campuses became co-ed and the curriculum was increasingly geared to college preparation. In 1996 two new campuses were established on the neighbor islands of Maui and Hawai'I, and they now serve students in grades K - 12. Kamehameha also operates 30 preschool sites statewide. The three campuses enroll over 5,000 students and an additional 23,000 are served annually through community-based and scholarship programs, and collaborations with educational and community organizations. In addition to three campuses, Kamehameha operates 30 preschool sites enrolling 1,500 3- and 4-year-old children statewide; and serves thousands more students through community outreach and scholarship programs, and collaborations with educational and community organizations. Kamehameha subsidizes a significant portion of the cost to educate every student. Although modest tuition and fees are charged, nearly 60 percent of

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Kamehameha Schools - Facts About KS

http://www.ksbe.edu/about/facts.php

preschool and K-12 families qualify for and receive need-based financial aid. Christian and Hawaiian cultural values and practices as well as service learning are integral to Kamehameha Schools programs, both on campus and in the community. It is the policy of Kamehameha Schools to give preference to applicants of Hawaiian ancestry to the extent permitted by law. Kamehameha Schools is the largest private landowner in the state of Hawai`i. Income generated from its residential, commercial and resort leases, as well as diverse investments, fund the schools' maintenance and operations. The Schools' endowment has experienced dramtic growth over the past few years, resulting in a total portfolio value of $7.66 billion as of June 30, 2006. Kamehameha's Endowment Group also manages several education collaborations which focus on utilizing Kamehameha Schools' sizable land holdings for educational purposes. The `ina Ulu program is designed to use Kamehameha lands as classrooms for project-based learning. Statewide, more than 15,000 participants were served in 2005-06. The Mlama `ina program incorporates land and resource stewardship management plans which help ensure availability of resources to meet future needs.
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Exhibit 2

Kamehameha Schools Annual Report
JULY 1, 2006 JUNE 30, 2007 " K a m e h a m e h a S c h o o l s ' m i s s i o n i s t o f u l f i l l P a u a h i 's d e s i r e t o c r e a t e e d u c a t i o n a l o p p o r t u n i t i e s i n p e r p e t u i t y t o i m p r o v e t h e c a p a b i l i t y a n d w e l l - b e i n g o f p e o p l e o f H a w a i i a n a n c e s t r y. "

K

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Maui Headmaster Lee Ann DeLima

amehameha Schools Maui Outreach programs like Summer of Opportunity (left), Hulili and Ka Lei o ka Lanakila contributed to ¯ the nearly 36,000 children and families served through KS programs in the community and on its campuses statewide.

D
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Kamehameha Schools Board of Trustees

J. Douglas Ing

Nainoa Thompson

iane J. Plotts

Robert K.U. Kihune

Corbett A.K. Kalama

Kamehameha Schools Chief Executive Officer Team

Dee Jay Mailer Chief Executive Officer

Kirk O. Belsby Vice President for Endowment

Ann Botticelli Vice President for Community Relations and Communications

D. Rodney Chamberlain, D.Ed. Vice President for Campus Strategies

Michael J. Chun, Ph.D. President and Headmaster KS Kapalama ¯

Lee Ann DeLima Headmaster KS Maui

Randie Fong Director, Hawaiian Cultural Development

Stan Fortuna, Ed.D Headmaster KS Hawai`i

Darrel Hoke Director, Internal Audit

Sylvia Hussey Head of Educational Support Services

Michael P. Loo Vice President for Finance and Administration

Lynn C.Z. Maunakea Vice President and Executive Director Ke Ali`i Pauahi Foundation

Christopher J. Pating Vice President for Strategic Planning and Implementation

Colleen I. Wong Vice President for Legal Services

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Kamehameha Schools awarded $16.4 million in post-high scholarships to 2,200 students.

Numbers served through Kamehameha Schools programs and collaborations
Children Pre-Natal to 36 months Center-based preschools Preschool age children K-3 grade in public schools Supporting 4-12 grades, post-high and charter schools SP3 Campuses SP1-3 Caregiver training and support; support for families and caregivers of children PN-12 ­ community Total number of Hawaiians served SP1 SP1 SP1 SP1 SP2 FY 05-06 104 1,439 1,094 3,375 12,043 5,298 4,686 28,039 FY 06-07 329 1,467 1,845 1,600 14,235 5,354 10,776 35,606

¯ amehameha's `Aina Ulu land-based educational program bridges the management of Kamehameha's lands with its educational mission.

5 K

W

5

4% 12%

2%

1% 31%

Category
Campus-based Programs Community Education Major Repairs & Capital Projects Debt Financing Interest Other Total Trust Spending

Amount
$127 million $78 million $31 million $9 million $5 million $250 million

Kamehameha Schools Investment Returns and Benchmarks
Period ending June 30, 2007
One-year total return Total Endowment Endowment Fund Composite Benchmark CPI + 5% +Large Endowment Fund Median 22.3% 15.5% 7.7% 20.2% *Three-year total return 17.3% 12.1% 8.2% 16.0% *Five-year total return 14.5% 10.9% 8.0% 13.6% *Since July 1, 1999 total return 11.3% 7.5% 7.9% 10.3%

indward Mall was revitalized with a $23 million renovation.

*Annualized +Source: Cambridge Associates

tudents from Halau Lokahi charter school participate in an October 2007 lei hili workshop presented by Pomai Kalahiki of Kamehameha's Enrichment department. Held at Kapalama's ¯ ¯ Keanakamano Hawaiian Cultural Garden, the workshop was part of the National Indian Education Association Convention. Kamehameha Schools supported 14 Hawaiian-focused charter ¯ schools with 2,300 students and provided one-time funding allocations to 12 of the schools totaling approximately $4.8 million in fiscal year 2007.

S

Kamehameha provided $4.4 million to 850 keiki in community preschools through its Pauahi Keiki Scholars program.

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Exhibit 3

Kamehameha Schools - Trustee Message: Kamehameha Schools and "Jo...

http://www.ksbe.edu/article.php?story=20070514062928373

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Trustee Message: Kamehameha Schools and "John Doe" Settle Admissions Lawsuit
Monday, May 14 2007 @ 06:29 AM HST | Contributed by: CEO

Message | Views:3,414

Aloha mai kakou, We have reached agreement with "John Doe" to resolve Doe's lawsuit seeking to overturn our admissions policy. The terms of the settlement are confidential. By settling this case, we protect our right to offer admissions preference to Native Hawaiians. The plaintiff has withdrawn his petition for U.S. Supreme Court appeal of the 9th Circuit Court ruling upholding our preference policy as legally permissible. This means that the Circuit Court ruling stands ­ our legal right to offer preference to Native Hawaiian applicants is preserved. Our work to fulfill our mission and Pauahi's vision, on our campuses and in our communities can proceed without distraction. The ruling from the 9th Circuit Court is a pono one for Kamehameha Schools and for kanaka maoli. The majority opinion written by Judge Susan Graber acknowledges our unique history and the importance of our mission. In addition, the concurring opinion by Judge William Fletcher recognizes that Native Hawaiians have political status with the U.S. as a Native people. It is a great ruling to uphold, for Kamehameha Schools and the many federal and state programs that acknowledge and support the determination of our people to thrive. By settling this case we preserve our rights to serve our people in the manner we feel is best. This was a very difficult decision. From the beginning of this lawsuit, we have been prepared to defend our policy to the very end of the judicial process. However, it is becoming increasingly clear that this lawsuit is only one piece of a much broader risk to the rights of Native Hawaiians, as the Indigenous people of this state, to manage and control our own resources. We cannot ignore the treacherous landscape before us. We have all seen the systematic attempts to take Hawaiian Homelands, dismantle the Office of Hawaiian Affairs, to eliminate federal funding for programs that serve to improve the well-being of Native Hawaiians, and to scuttle attempts in the U.S. Congress to solidify our peoples' Indigenous status. We have all heard our efforts to protect our rights as Indigenous people described as "Balkanization," "separatist" and "racist." We have all read essays and opinions that seek to rewrite Hawaiian history and the overthrow of the Hawaiian Kingdom and government. The John Doe v. Kamehameha Schools case was just one more attempt by a few to chip away at Native Hawaiian rights. Settling this case preserves our ability to fulfill our mission and our right to use our resources for their directed purpose, as a completely private Trust established by the bequest of one of our Ali`i during the time of Hawaiian Sovereignty. Settling this case also reserves the rights of other private trusts ­ Native and non-Native, as well as the rights of all Indigenous people to control and use resources designated for their benefit. This settlement, which preserves a favorable 9th Circuit Court ruling, has the same legal effect as a denial of the plaintiff's petition for Supreme Court review. It allows us all to move forward with a common purpose: protecting the rights of kanaka maoli, private individuals and Indigenous people everywhere to use our own resources to take care of our own people. As a Native Hawaiian trust, we will stand strong with other organizations and individuals to protect our assets. And as an Educational institution, we will move ahead with speed and diligence to extend our reach into our communities to more Native Hawaiian children and families, as our Princess intended. We have made significant gains in the number of children and families we serve in the past year, and we are ready to do more. You have been stalwart in your support as we have fought to protect our rights and our mission. Mahalo piha for all that you do for Kamehameha Schools and for the children and families we serve.

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Kamehameha Schools - Trustee Message: Kamehameha Schools and "Jo...

http://www.ksbe.edu/article.php?story=20070514062928373

Me ka ha'aha'a, Trustee J. Douglas Ing, Chair Trustee Nainoa Thompson Trustee Diane Plotts Trustee Robert Kihune Trustee Corbett Kalama Dee Jay Mailer, CEO

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©1996-2008 Kamehameha Schools. All rights reserved. Statements of Privacy, Copyright, & Disclaimer » Anti-Spam » Login » Webmail Contact Us: 567 South King Street, Suite 200, Honolulu, Hawai'i 96813 · Phone: [phone] · Fax: [phone] » Suggestions?

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