Friday, May 22, 2020
The issue behind the Grand Wailea Resort contested case proceedings: desecration of sacred gravesites
Here is a short video explaining the issue behind the contested case hearing that the Maui Planning Commission wants to keep locked behind closed doors.
Also see: Media Groups Demand End to Closed Grand Wailea Resort Contested Case
Disappeared News part of media group seeking to open Maui Planning Commission deliberations to public scrutiny
by Larry Geller
A media group (including Disappeared News) has petitioned the Hawaii Supreme Court for a writ of mandamus to order the Maui Planning Commission to open its deliberations to the public in a contested case hearing. A writ of mandamus is an order from a court to a government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.
The Commission has ignored a written demand by the group that contested case proceedings related to the Grand Wailea Resorts proposed expansion be reopened to the public.
“Petitioners seek a writ of mandamus directing the MAUI PLANNING COMMISSION and its HEARING OFFICER to open its proceedings in In the Matter of the Application for: BRE ICONIC GWR OWNER, LLC, Docket No. SM1 2018/0011 and to otherwise comply with the constitutional standards set forth in Oahu Publications Inc. v. Ahn before closing any contested case proceedings to the public...
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A downside of the current coronavirus crisis is that it gives government boards and commissions the opportunity to feel they can flout constitutional or statutory requirements to conduct their business in the open.
The Maui Planning Commission is moving forward with a contested case hearing closed to the public.
See:
Pandemic no excuse for government hostility to sunshine laws
The issue before the Maui Planning Commission is the request by the Grand Wailea Resort to remodel and expand its operations within the Special Management Area.
The public has a right to observe the discussion, the decision-making process, and any vote. To cloak actions of a board or commission in secrecy means that they do not want to be accountable to the public for their actions.
Download 20200521 Petition for Writ of Mandamus Re Maui Planning Commission from Disappeared News
Tuesday, May 19, 2020
Pandemic no excuse for government hostility to sunshine laws
by Larry Geller
“Information allows people to scrutinise the actions of a government and is the basis for proper, informed debate of those actions.” (The Public’s Right to Know: Principles on Freedom of Information Legislation,London, 1999, p. 1.)The founding fathers recognized the connection between
democratic government and an informed populace.
George Washington, who suffered more than his share of criticism
from the prq^, believed in the importance of the free
exchange of ideas in a democracy. He once wrote that the
process was necessary so Citizens at large may be well informed,
and decide, with respect to public measures, upon a
thorough knowledge of the facts. Concealment is a species of misinformation." (James E. Pollard, The Presidents and the Press, 1947, pp. 29-30)
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Given the chance, many government boards, commissions and even the Hawaii State Legislature will take the opportunity to operate out of the public view. The current COVID-19 crisis coupled with Governor David Ige’s emergency proclamations have made it easier for government bodies to overstep their discretion in locking the public out of the public’s business.
This morning attorney Lance Collins submitted a written demand that the Maui Planning Commission's contested case proceedings related to the Grand Wailea Resorts proposed expansion be reopened to the public. Disappeared News and The Hawai'i Independent are media organizations making this demand.
The issue before the Maui Planning Commission is the request by the Grand Wailea Resort to remodel and expand its operations within the Special Management Area.
Three Native Hawaiian community groups, Malama Kakanilua, Hooponopono o Makena and Pele Defense Fund were granted intervention in the proceedings and the Commission appointed Maui attorney Linden Joesting as the hearings officer.
On May 7, the hearings officer issued an order denying that the proceedings were required to be open to the public, reaffirming an earlier decision that the proceedings move forward regardless of the COVID-19 emergency or the stay at home orders on the basis of needing to "get the administrative law work of the County done."
Relying upon First Amendment caselaw protecting the press' right to access adjudicative proceedings, the media groups have also noted Hawaii's long tradition and experience of open access to contested case proceedings especially related to land use.
The letter includes these points:
“In summary, the Media demand that the proceedings for the above-mentioned contested case be re-opened to the public without qualification or delay. Article I, Section 4 of the Hawaii State Constitution and the First Amendment to the United States Constitution, as well as the requirements of the Charter of the County of Maui, impose upon the Maui Planning Commission and its hearings officers, an obligation to conduct contested case proceedings including prehearing conferences in a manner accessible the public and the press.”
Disappeared News feels that it is important to clarify that actions of government be completely transparent—and that the coronavirus crisis not be used as an “excuse” to deny the public its rights. There’s no question that government does have the ability and in the context of public health or national security and public order, or the rights of others like privacy, to impose some rules and limitations. But to place limits on the public’s right to see or participate in the actions of its government, the restrictions need to meet tests of necessity. The denial by the hearings officer does not meet standards of necessity.
Additionally, there is a long tradition and experience of open access to contested case proceedings especially related to land use.
"There has been a total disregard for the rights of the public and the press to access and observe this important case. We sincerely hope the Commission reconsiders this decision immediately," said journalist Victor Gregor Limon.
"This time of emergency does not justify government secrecy. The Resort is certainly not entitled to have their permits fast-tracked behind closed doors while public gatherings are banned and also excluding the press,"
Download 200519 Media Letter to Maui Planning Commission from Disappeared News
