Friday, February 15, 2013


Hawaii Supreme Court to decide if state bodies can avoid public notice by repeated recesses

by Larry Geller

Can a public body bound by Hawaii’s Sunshine law recess a meeting repeatedly, avoid posting public notice, and meanwhile communicate among themselves by email on matters to be considered?

The state Supreme Court will hear oral arguments next Thursday in Kanahele et al. v. Maui County Council et al., No. SCWC-29649, which will decide whether the Maui County Council has found and used a loophole in the Sunshine Law, or whether they violated it in 2007 by holding a string of meetings of which only the first was given public notice.

Oral testimony was taken at the properly noticed October 18, 2007 meeting of the Land Use Committee of the Maui County Council. But then the Committee recessed its meeting over and over, holding subsequent meetings on  October 22, 23, 25, 29, November 1, 5, 7, 8, 13, 16, 19 and 20, without notice, and without, it is alleged, giving the public any further opportunity to testify in person.

In his request for a writ of certiorari (that is, asking the Supreme Court to hear the case), attorney for the plaintiffs Lance Collins noted that in the course of these many meetings, the Committee took up several new matters, and emails flew between members.

Now, it's somewhat unusual that anyone takes a government body to court because of violations of the Sunshine Law. Also, if the case were clear-cut, it would not have ended up in the Supreme Court at all. But plaintiffs wrote, among other arguments, that the appeals court decision against them “ignores the strong public policy for that opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest.”

So what we will perhaps hear on Thursday is the letter arguing against the spirit of the law.

The case is scheduled to be heard on Thursday 10:00-11:00. Seating is comfortable in the historic Supreme Court building, and visibility is good—come on down. Don’t count on reading about the case in the media the next day—so far it has been ignored.

Rest assured, though, that if the Supreme Court allows state bodies covered by the Sunshine Law to repeatedly recess and reconvene in the manner described, before you know it, everyone will be trying this.

Sadly, government often prefers to make its sausage in the dark. Need I add that most sausage is not kosher.


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