Monday, October 26, 2009


Administrative rules figure in new furlough challenge

by Larry Geller

On Friday schools were closed for the first of 17 scheduled furlough days this year. Parents protested at the State Capitol, scrambled to find child care, or kept children at home or brought them to work. On the same day, attorneys in the first case brought against the DOE (Carl Varady, Stan Levin and Susan Dorsey) filed an amended complaint with the federal court asking for a restraining order based upon violation of the Hawaii Administrative Procedures Act. That Act governs the setting and amending of Hawaii Administrative Rules, which have the force of law.

The new complaint and a memorandum in support are attached below, for those who are following these cases. The memorandum has the new argument neatly arranged and could save time if you don’t want to plow through the whole thing.

This snippet from the Memorandum summarizes the new argument:

Defendant [DOE], by adopting a rule that reduced the existing school calendar by 17 days has imposed on all public school children and their families a 163-day school year by without complying with notice, hearing and comment  provisions of HAPA. The process followed by the Defendant arbitrarily adopted a universally applied rule that cuts off 17 days in the existing school year as a cost savings measure. Through application of the new rule, Defendants unilaterally and without public notice, hearing and comment, violated HAPA. The rule creating the new 163-day school year is void. Plaintiffs seek a declaration that it is unlawful and mandating that 17 instructional days be restored to the public school calendar ntil and unless Defendant complies with the notice, hearing and comment provisions of HAPA, and the citizens of Hawai‘i have public input required by law concerning Defendant’s adoption of this new rule.

The HAPA argument is interesting to me because it has been used successfully in two recent high-profile cases.

In Babson v. Cronin, attorney Lance Collins argued successfully that the Hawaii Office of Elections illegally attempted to set rules for the use of electronic voting machines by including them in the specifications in their Request for Proposals, instead of going through the process required by law, including holding public hearings. Judge Joseph E. Cardoza enjoined the state from going ahead with the RFP until new rules were in place.

Attorney Paul Alston obtained a TRO from Judge Michael Seabright preventing the state from cutting off medical services including dialysis and chemotherapy that it was providing to Micronesians and others, with a similar argument (see unofficial document ST v. DHS).

A snippet from this case:

There are common questions of law and fact, including but not limited to whether Defendants' new policy of treating this class of Hawai'i residents differently than other residents of Hawai'i violates the Hawai'i Constitution, whether Defendants' sudden rule change will deprive Plaintiffs of their constitutionally protected right to life, and whether Defendants' rulemaking without notice or a formal process violates the Hawaii Administrative Procedures Act.

The new furlough case filing is different in that there are not yet rules for the number of school days, but arguably there should be. This is something that might usefully be taken up by the Legislature in the event that Judge Ezra does not immediately enjoin DOE.

The documents below should be considered unofficial documents and not relied upon except for educational purposes. You can download the documents by right-clicking on the title links. The second document may be too long to display, just download it if you want a copy.


Memorandum in Support of Plaintiffs’ Amended Motion for Declaratory and Temporary Injunctive Relief


First Amended Complaint for Declaratory and Injunctive Relief


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