Abigail Kawananakoa records secret despite Supreme Court directive

First Circuit Court Judge R. Mark Browning said in court last week that he’s all about due process and fairness as he oversees the now-yearlong legal brawl over control of the $215 million trust of Campbell Estate heiress Abigail Kawananakoa.

But there’s one area in which the judge is falling short: upholding public records law.

In allowing dozens of pleadings in the high-profile trust fight to remain sealed and obscured from public view, Browning appears to be ignoring the guidance and legal precedent established by the Hawaii Supreme Court.

There have been a handful of high court rulings in recent years aimed at balancing the protection of sensitive personal information against the public’s constitutional right to access the courts, including one just last month that reaffirmed the established procedures for sealing court records.

Those procedures, largely fixed by Oahu Publications Inc. v. Takase, a case brought by the Honolulu Star-Advertiser two years ago, calls for judges to issue a “minute order” for any portion of a pleading with information requiring sealing. A minute order is a judge’s order made orally during a court session and often documented only in the court clerk’s minutes.

With the minute order serving as public notice, the judge must then expeditiously hold a hearing and make findings of fact and conclusions of law before giving final authorization to any sealing or redactions that must be narrowly tailored to remove from public view only the kind of information described by Hawaii court records rules.

Despite these procedures, the extensive court docket in the Kawananakoa case indicates Browning has issued only one minute order regarding sealing, and it came with no required hearing despite at least one public request in the form of a motion.

Although at least 14 documents have been filed with redactions, no orders or public hearings were held for those items, according to the record.

Additionally, more than 50 other pleadings and exhibits are sealed and hidden from the public’s view, contrary to Supreme Court instructions.

“Based on the docket, the judge is absolutely violating the dictates of the Supreme Court. There’s no doubt about it,” Honolulu media attorney Jeffrey Portnoy said.

Among the redacted documents is the special master’s report detailing an investigation into the mental capacity of the 92-year-old heiress, who suffered a stroke in June 2017 and was declared mentally incompetent.

It was that declaration that set off the legal battle for control of the trust between Kawananakoa’s now-wife, Veronica Gail Worth, and successor trustee James Wright, the heiress’ former attorney. Browning would eventually commission an independent master to investigate the matter and make a recommendation to the court.

Within the special master’s report is a psychiatrist’s 63-page evaluation that remains under seal. But without a public hearing, the document is being shielded contrary to the direction of the Supreme Court.

“That’s not to say the doctor’s report is not ultimately sealed — and maybe for good reason,” Portnoy said. “But you just can’t do it on a whim.”

He added, “The burden on a party attempting to seal is extraordinary. It’s based on the First Amendment.”

Frustration over the Kawananakoa filings spilled over last week when Rick Daysog, a Hawaii News Now reporter, filed a writ to the Hawaii Supreme Court asking for it to compel Browning to unseal the secret documents, citing violations of the First Amendment and of the instructions of the Supreme Court to judges in Oahu Publications Inc. v. Takase, also known as the Takase case.

“I’m exercising my rights to access public records,” Daysog said outside a court hearing Thursday. “We don’t know what they’re talking about all the time.”

The writ asserts, among other things, that Browning acknowledged he wasn’t complying with the Takase procedures Feb. 9 when he instructed the parties in his chambers to comply with the law in making redactions.

“However, he also instructed his law clerk to call the attorneys for the parties and advise them that they should not comply with the requirement of Takase that redacted copies of sealed documents be filed,” Daysog’s writ says.

“There was no record in the official court file of this instruction. Even to the most diligent observer it would appear that Judge Browning had told the parties to follow the law. In fact, the opposite was true.”

The Supreme Court has yet to make a ruling on Daysog’s request.

An attempt to contact Browning for an explanation Friday was unsuccessful. Hawaii State Judiciary spokeswoman Jan Kagehiro said he was unavailable and couldn’t talk about the case as required by court rules.

However, Kagehiro responded in a statement Saturday that Browning had ordered the sealing of certain documents and filings with language allowing individuals to file a petition objecting under the Takase requirements.

But documents obtained by the Star-Advertiser show Browning didn’t attempt to follow the Takase requirements until Feb. 22, when he ordered language to be included retroactively on the 26 pleadings already sealed and on documents requiring sealing or redaction going forward.

In any case, the judge didn’t follow the directives of the Supreme Court because he didn’t hold any of the required public hearings or order redacted versions to be filed except for the special master’s report.

Portnoy, the media attorney, said trial courts in Hawaii have a history of closing proceedings and obscuring records. He has represented the Star-Advertiser in three recent attempts to pry open court records, two in federal court and one in state court. All have been won by the newspaper.

“Some of the trial courts haven’t gotten the message,” he said. “How many more writs must the Supreme Court grant before trial judges in this state begin to follow the constitutional requirements before sealing any court proceeding or document? What’s the problem here?”

Journalism professor Gerald Kato, chairman of the School of Communications at the University of Hawaii at Manoa, said it’s disappointing public court documents are being hidden from view.

“It’s fairly clear, the rules of Takase,” he said. “It requires greater transparency in the trial courts. The basic principle is found in the motto of the Washington Post: Democracy dies in the dark. Keeping information from the public does a great disservice to the public.”

Kato, a former newspaper and television reporter, said he remembers the “cat and mouse game” trying to obtain public documents when he was working the court beat.

“Just because there’s a court ruling doesn’t mean a judge is going to honor his obligations,” he said. “This kind of thing is another illustration of why the media has to be extremely persistent.”