Disappeared News

by Larry Geller

It’s important to have validation that a county council in Hawaii can be made to follow the sunshine laws. In a case argued all the way to the Hawaii Supreme Court, Kanaehele v. Maui County, the verdict is that the Maui County Council violated Hawaii's open meeting law during the deliberation process for the Wailea 670/Honuaula Development Project.

Maui Attorney Lance Collins stuck to his argument all the way, which will now serve as a precedent and (one hopes) guidance to future county councils that think they can flout the law. But the lower courts’ decision that the ordinance passed by the Council still stands means that the victory is incomplete.

Whether the Council learns a lesson from this will depend, however, on whether the citizens of Maui hold them to better behavior. After all, it will be Maui County taxpayers and not the errant council members who will pay the costs of this case.

Enforcing Hawaii’s Sunshine Act can be a challenge for the average citizen. At the state level, many agencies try to follow the law (others not so much), but as one moves down the ladder of government, compliance can become problematic. As an example, someplace I have an old video of a Kauai County Council meeting that appears to capture, at one point, a debate on whether the Council will follow the law or not (!).

Although the state Office of Information Practices can provide guidance, if that guidance is not followed by the agency (or if one disagrees with it), the only recourse is to head to court. The cost of duking it out in a courtroom is usually prohibitive, and the results uncertain. So citizens are often losers from the start in any dispute over public records or open meetings.

Lance Collins is unusual in that he is often willing to take public interest cases. In 2009 he won Babson v. Cronin on behalf of five citizens of Maui against Hawaii’s Chief Elections Officer. The suit challenged three aspects of the voting process including the transmission of voting results over the Internet and the use of electronic voting machines, which had not been authorized by lawful means.

In order to better understand the shenanigans that the Maui County Council was accused of perpetrating against public transparency, I attended the oral arguments in February—see Hawaii Supreme Court to decide if state bodies can avoid public notice by repeated recesses (2/15/2013).

I knew that they had repeatedly recessed (rather than adjourned) Land Use Committee meetings in 2007 on the theory that by doing so, they did not need to give the public any notice. In the course of these many meetings, the Committee took up several new matters, and emails were exchanged between members.

The Land Use Committee first met on October 18, 2007 and then 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. But they did take input from one particular person—guess who?

After October 18, 2007, no further oral testimony from the public was received by the LUC. With the exception of two meetings (November 13 and 16), the LUC members sought and received extensive input from Mr. Jencks, Honuaula’s representative. Mr. Jencks was present at every reconvened meeting.
[p. 7]

The Committee effectively barred the public from giving testimony, or, in fact, participating in or observing the process in any way. In the 80-page opinion, this aspect of the case is discussed in great detail. For example:

The policies expressed in HRS § 92-1 are a direct result of the legislature’s belief in the dangers of a secret government and its attempt to protect the public from such a government. When the Sunshine Law was adopted in 1975, the legislature envisioned that the law would be a “stringent open meeting bill that meets the demands and the concerns of the general public regarding the decision-making process.” 1975 House Journal, at 778 (statement of Rep. Roehrig). The hope was that “[g]overnment decision-making before the public will mean that everyone will have equal opportunity to become involved in the process.”
[p. 52]

It was not the actions of the Land Use Committee which swayed the Court, however. Attorney Collins described the conduct of the full council and the Supreme Court’s decision:

In early 2008, the Maui County Council conducted its first reading of the development project bills. During the three day meeting, Council members circulated some fourteen written memoranda proposing amendments to the development project bills and asking for support from other council members.

The Supreme Court found that the circulation of those written memoranda violated the spirit and the letter of the Sunshine Act. Because the violations did not occur during the final action related to the bills, the Supreme Court declined to void the challenged ordinances. The Supreme Court has ordered the case remanded to the trial court for consideration of an award of attorney's fees and costs to the Plaintiffs who challenged the County Council's actions.

I think this outcome underlines the difficulty of seeking redress in the courts over sunshine law violations in Hawaii. The outcome of any court case is uncertain—here, thanks to the willingness of attorney Collins to take the case and fight it through to completion, there was a favorable outcome with regard to the Council’s violation of the Sunshine Law. But in the end, the Council’s ordinance stands. A small snip from a long chunk of the opinion:

We recognize that other states have adopted many different approaches to invalidation based on violations of open meetings law. However, we expressly decline to adopt a standard for determining when a violation of the Sunshine Law would warrant invalidation under HRS § 92-11.
[p. 78]

It seems there is an opportunity here for advocates to revisit and urge the Legislature to refine portions of the Sunshine Law so that guidance in future cases becomes clear. The opinion also has many pages of discussion on the sequentially-recessed meeting that could help improve the law.

So there are no consequences for the County Council immediately. In the future, they will likely pay more attention to the sunshine law requirements because it will be easier for someone to haul them into court. But for now, they will likely have to pay only attorneys fees and court costs. But guess what—they don’t pay those fees out of their own pockets. Maui taxpayers will of course foot the bill.

So there might be one more useful outcome from this case—if Maui citizens think their tax burden is high enough, they might question their county council members or new council candidates on their willingness to follow the sunshine law and stay out of court.

Perhaps they might also notice how they have been treated by their Council—that is, how they were locked out of the lawmaking process.

And who benefited from the Council’s conduct and from the ordinance that was pushed forward in secret? Was it a developer, by chance? Just askin’. One could check also to see whether campaign contributions might have been made.

Over to you, Maui citizens.

Permalink posted by Larry @ 8/09/2013 01:50:00 PM