Retired U.S. District Court Judge Alan Cooke Kay, the
jurist who handed down historic rulings protecting Kamehameha Schools’ admissions policy and journalism in Hawaii, died Tuesday. He was 92.
Kay, a local boy who grew up on Oahu and spent time at his family’s ranch on Molokai, suffered a heart attack and was hospitalized before dying. He was “surrounded by his loving wife Pat and family,” according to a news release from the U.S. District Court of Hawaii. The Punahou School alum will be “missed by family, his colleagues, and many friends,” the release said.
Kay was remembered as a well-prepared, serious attorney and judge who drew laughs with his dry wit and was committed to ruling fairly from the federal bench after more than
25 years in private practice.
A big fan of Hawaiian music, Kay and his wife often could be found with friends on Sunday afternoons at the Oahu Country Club listening to local performers to cap the
weekend.
U.S. District Senior Judge Helen Gillmor said Kay took his work very seriously and had a “great sense of dedication.”
“He is somebody who was born
to be a judge. Just had a sense of fairness and dedication to the truth and getting to the right decision. He really was the kind of person you want making a decision for you,” Gillmor said. “He put forward this very dry, sort of studious, serious (approach) … but he did have a really good sense of humor.”
Kay graduated from Princeton University and the University of California Berkeley School of Law. He served in the Marine Corps from 1953 to 1955.
He spent 26 years as “a named partner” in the Honolulu firm Case Kay &Lynch from 1960 to 1986 while simultaneously serving from 1968 through 1971 as director of the Legal Aid Society of Honolulu.
President Ronald Reagan nominated Kay to the federal bench on July 3, 1986, and Kay received his commission as a U.S. District Court judge on Sept. 15, 1986. After serving as chief judge from 1991 to 1999, Kay assumed senior status in 2000.
“I feel fortunate to have been
Alan’s colleague,” said Chief U.S. District Court Judge Derrick K. Watson in a statement. “He was a beloved member of our court for over three decades. As a truly gifted jurist, Judge Kay always judged with humility, compassion, and his famously dry sense of humor. The entire court family will miss him.”
In 2003, Kay held that Kamehameha Schools’ admissions policy granting preference to children of Native Hawaiian ancestry was constitutional and did not violate federal law.
The decision was “grounded in his knowledge of Hawaiian history and the Kamehameha Schools’ policy of educating native Hawaiians given that history,” according to the news release announcing his death.
“The Court reiterates that Kamehameha Schools is a private school receiving no federal funding. The Court finds that Kamehameha Schools has a legitimate justification for its admission policy and that it serves a legitimate remedial purpose by improving Native Hawaiian socioeconomic and educational disadvantages, producing Native Hawaiian leadership for community involvement and revitalizing Native Hawaiian culture; thereby remedying current manifest imbalances resulting from the influx of western civilization,” wrote Kay in 2003.
“Native Hawaiians continue to suffer from economic deprivation, low educational attainment, poor health status, sub-standard housing, and social dislocation. The Court further finds that the admission policy is reasonably related to its remedial purpose.”
Kay’s decision was affirmed by the full 9th Circuit Court of Appeals in 2006.
The judge also “took pride in a decision granting an injunction favoring a free press in Hawaii,” according to the news release.
Kay stopped the termination of the joint operating agreement between The
Honolulu Advertiser and
Honolulu Star-Bulletin in 1999 “that would have violated federal antitrust laws and have resulted in the demise of the Star-Bulletin.”
He wrote that the “public interest in maintaining an independent and competitive press strongly supported his injunction.”
Dennis E. Francis, presi- dent and publisher of Oahu Publications Inc., who worked at both The Honolulu Advertiser and the Honolulu Star-Bulletin, lauded Kay as a “a friend and advocate for a free press in Hawaii.”
“His decision was monumental in preserving jobs not only for journalists but many important positions that support the critical work of news gathering,” Francis said.
That decision was also upheld on appeal to the
9th Circuit.
In his ruling, Kay said he was not persuaded by Gannett’s argument that the Newspaper Preservation Act exempts the termination agreement from antitrust scrutiny. At the time, Gannett owned The Honolulu Advertiser, and Liberty owned the Honolulu Star-Bulletin.
The act’s purpose is to preserve competing editorial voices, but the termination agreement would have resulted in the closure of the Star-Bulletin, which didn’t have the infrastructure to publish, Kay said.
The ruling blocked Gannett and Liberty from proceeding with the proposed Oct. 30, 1999, shutdown and paying out a $26.5 million termination payment.
Kay also ordered the
parties not to make any changes to the existing joint operating agreement or make adverse changes that would affect Star-Bulletin advertisers and subscribers.
Hawaii Supreme Court Chief Justice Mark E. Recktenwald said in a statement Thursday that he “had the privilege of appearing before Judge Kay numerous times” before becoming a judge himself.
“He had a brilliant legal mind and was always meticulously prepared. He was unfailingly fair and respectful to all those who appeared in his courtroom,” Recktenwald said.
“As Chief Judge, he led the court with grace and kindness. His quiet demeanor belied a good sense of humor and compassion.”
U.S. Attorney Clare E. Connors said many assistant U.S. attorneys in the District of Hawaii “had the pleasure of appearing before Kay, and in all instances, they — like all litigants — were treated fairly and respectfully.”
“He displayed no ego and only the desire to achieve a just and lawful outcome. He has been missed since his departure from the bench and he will be remembered fondly,” Connors said.