Thursday, January 19, 2012


Sunshine Law complaint against Reapportionment Commission

by Larry Geller

Bart Dame was the first to point out the apparent violation of the Sunshine Law suggested by the Reapportionment Commission actions in asking the Supreme Court to reconsider its January 4 decision against their plan and in firing their deputy attorney general.

For a good discussion, see Reapportionment Commission action draws sunshine law scrutiny (, 1/17/2012) including Bart’s and other comments.

I emailed a complaint and request for investigation to the Office of Information Practices yesterday.  It is hard to imagine how the Commission could have conferred and decided on these actions in the absence of a noticed meeting without violating the Sunshine Law. An email reply I received from Judge Marks, Chair of the Commission, after I filed my complaint,  did not explain how the decisions were reached. She said only that their counsel filed the motion for reconsideration.

I had filed a complaint last year alleging Sunshine Law violations after the Commission added to an already noticed agenda the item currently still the subject of controversy—whether non-residents should be counted for the purposes of drawing district lines. The OIP did not agree with me.

The OIP still has a significant backlog of complaints, so there is no telling how long it will take for them to address my new complaint. I filed it simply, in a short email. The question is not too complicated. However, it is important and time-critical. The Commission has a tight timeline.

If you would like to help by urging the OIP to take up the question as expeditiously as possible, their phone number is 586-1400.


Assuming for purposes of discussion that the decision to seek reconsideration was made in violation of the Sunshine law. Then the motion filed as a result of the decision is an ultra vires act and the party opposing the Commission could, it would seem, ask the court to strike, disallow, or deny such as motion under the theory that courts cannot cognize [i.e. see] the results of an unauthorized act. The Sunshine law makes unauthorized actions 'invisible'. heh heh.

steve's comment is not a correct view of the law in Hawai'i. the court rules presume that an attorney has authority to act for its client and courts will not inquire into whether each act of an attorney had the express authority of the governmental entity unless the entity itself raises the issue -- since it would interfere with the attorney client relationship. the decision itself is not ultra vires because the commission has the authority to ask the supreme court to reconsider its decision (which under the appellate rules is a very short time period). the issue is whether it comported with the procedural requirements of the open government statute. failure to abide by such an act does not make it ultra vires as an ultra vires act is something beyond the substantive power of the actor -- something that can't be cured by ratification, etc.,.

as for an action in violation of the sunshine law, a person must file a complaint in circuit court and ask for the relief of voiding the challenged act -- the sunshine law does not make violative actions void, but voidable, which requires a judge to do something to void a challenged action. this view has been sustained by the case law that has developed in Hawai'i over the last three decades. so it is not a correct view of the law to say that the Sunshine law make unauthorized actions "invisible"...

Today, just before noon, the Hawaii Supreme Court denied the motion for clarification and/or reconsideration.

I may be too close to the story, so it would be helpful if others who attended the meeting would offer their perspectives, but I was encouraged by the decisions-- and tone-- at today's hearing. The new deputy AG assigned to the commission, Brian Aburano, broke from the practice of his predecessors and explained his take on the Court's ruling and the choices before the commission. In the past, members of the public had to divine the legal theories guiding the commission. So Aburano's relative openness was a refreshing change.

I believe the commission is on track to deducting somewhere around 80,000 non-residents from the population base. They are still discussing how to do that. The judge put forth her view that the Court's ruling means they have to start with the raw number of alleged non-residents as presented by the petitioners (the Big Island folks) and need to make reasonable and justifiable adjustments to those numbers.

The staff also announced the DoD has agreed to provide the addresses of its military personnel in Hawaii, which will allow for them to be located more precisely for the purposes of redistricting. Staff also presented a strong argument (IMO) that about 15% of the active duty personnel assigned to Hawaii are actually on deployment and out of state. This means it is unlikely they were present at the time of the Census, so deducting them would be a mistake. They also contend the DoD figures on military dependents are also likely inflated, as when they studied the question in 2001, they found about 30% of the dependents reported to be living in Hawaii were actually not in the state. (This second claim is less clear to me).

So whether the commission starts with Extraction C, which had located about 80,000 non-residents or starts with the 120,000 figure and adjusts for these new assertions, the numbers are converging in the 80,000 person range.

The next meeting of the Commission is scheduled for Monday, January 30 at 2pm in the State Office Tower.

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