Thursday, February 21, 2013


Hawaii Supreme Court hears Sunshine Law case: Kanahele v. Maui County

by Larry Geller

[audio recording below]

It’s rare that private citizens can bring a case to court involving Hawaii’s Sunshine Law (open meetings, open records). As a result, the law is often disregarded, and the public’s right to know is disregarded. Each time a board, council, commission, or county council does this, it also demonstrates to others that the law can be safely disregarded.

In this case, of course we do not know how the Supreme Court will rule. The actions in question are the serial recessing of a meeting by the Land Use Committee of the Maui County Council. Over and over again the meetings were recessed so no public notice of their meetings was given. In fact, they did this twelve (count ‘em, 12) times. At the same time, the members circulated correspondence to conduct the Council’s business. 

The actions are not in dispute, only whether they were legal or not.

The lawsuit also challenges the decisions made by the Council during these sessions. One issue raised was whether a bill actually had two hearings if the first one was illegal. The Court may decide whether the Council’s action should be voided.

Andy Parx, in a comment to a Disappeared News article on the initial preliminary injunction (4/23/2008) wrote that during the serially-recessed meetings the County Council allowed

the developer to make comments and participate, but NOT allowing the general public to testify again.

Should the Supreme Court rule that the County Council actions were legal, we can expect to see the Sunshine Law gutted as other organizations take to recessing their meetings instead of adjourning them at the end of the day. We can expect that there would be more correspondence by email or otherwise carried out away from public view. The Supreme Court would, in effect, be establishing a blueprint for gutting the Sunshine law.

While I hesitate to guess how a court will rule, the questions asked by the justices seemed to indicate that they were concerned whether or not the public actually had access to the serially-recessed meetings, and whether the meetings were held “as openly as possible” (paraphrase).

Several justices referenced §92-1 of the law, which says:

§92-1 Declaration of policy and intent. In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legislature declares that:

    (1) It is the intent of this part to protect the people's right to know;

    (2) The provisions requiring open meetings shall be liberally
construed; and

    (3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.

Attorney Lance Collins, arguing for the plaintiffs, also mentioned that matters were discussed during the serially-recessed meetings that were not in the original meeting notice. Also, when the final vote was taken on matters discussed, there was no discussion before the public, just a vote.

[I’ve written about this practice before—for example, in a December 28, 2006 article describing how the Procurement Policy Board went into executive session without the required public notice, then talked for 2 hours and 12 minutes before coming back into session and voted immediately. They must have discussed the vote because the overwhelming majority of testimony was against the decision they ultimately reached.

In another instance reported here,  the State Reapportionment Commission went into executive session, and immediately upon returning, moved and decided on the matter of non-resident voting. I wrote that several of the commissioners came out of the meeting with extensive notes that they read from, suggesting that at least part of the discussion held behind closed doors might have instead been fully open to the public. The Office of Information Practices sided with the Commission in responding to a complaint I filed.

And in a third, the State Ethics Commission apparently discussed the criteria for firing its previous executive director and for hiring a new one in a series of secret executive sessions. While personnel matters are appropriate to be kept confidential under the law, policy matters of a Commission should be discussed in public. I had asked OIP to review the minutes in camera, and if they found that to be the case, to provide copies of the minutes to me. I was asked to fork over $531.95 for copies of the minutes. Of course, I declined. If the discussion should have been open in the first place, I should not have to pay to learn about it.]

A Supreme Court ruling in Kanahele v. Maui County, one way or the other, could be important since it would give guidance to OIP.

Here is an audio recording made with permission of the Court. It has echoes, since the historic courtroom wasn’t exactly made for great audio quality. I’ll replace it with a better one from the Court sound system when that is available.

(The first player requires QuickTime; if you don’t see it, try the second, or download the file and listen later.)

Download this Media File - (Right Click)


The fact that "(s)everal justices referenced §92-1" is the most promising thing I’ve heard in years. Even though it's section 1 it's often referred to as the "secret sunshine law" in that not only do councils, boards and commissions ignore it- especially the "liberally construed" and "strictly construed against closed meetings" parts- but the OIP rarely mentions it in their opinions either.

If 92-5(a)4- which allows executive sessions in order to "consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities"- were interpreted to actually meet the apparent two part test, we might have a real sunshine law. Right now as long as you have an attorney in the room- even asleep in the back under the air conditioner (as one of our CAs on Kaua`i used to do)- you're in like Flynn.

"The bottom line is not the result. The bottom line is the process. The bottom line is that it's supposed to be done." said one of the justices

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