The Hawaii Supreme Court last week articulated an expansive view of the public’s “right to know” and the open meeting requirements of the state’s Sunshine Law that should make openness advocates giddy.
It was the first time in 20 years the high court has tackled Sunshine Law questions head on, and they made up for lost time in a strong statement upholding the public’s broad right to observe and participate in government decisions of all kinds.
Instead of a limited technical decision, the court in this case emphasized the “sprit and intent” of the Sunshine Law and its broad requirements for public knowledge and involvement.
The court’s action came in a Maui case which had challenged alleged sunshine violations by the Maui County Council and its Land Use Committee when approving a proposed 670-acre development above the Wailea Resort in 2008.
In an 80-page decision dated Aug. 8, the Supreme Court allowed the approval to stand, although it found the Sunshine Law had been violated when council members circulated 14 written memos proposing amendments between public meetings. These included explanations and justifications, along with requests for “favorable consideration.” In other words, members solicited votes for the different proposals in violation of the open meeting law.
The court used the occasion to put public agencies on notice they must go beyond technical compliance with the letter of the law and comply with it’s far broader spirit and intent.
Maui attorney Lance Collins, who represented the plaintiffs, said the lawsuit resulted from “a sense of outrage about how the council was really trying to ram this thing through and just disregarded the sunshine law in the process.”
The Supreme Court spent the bulk of its opinion on the question of whether a meeting can be recessed and reconvened numerous times without triggering new public notice requirements, including the six-day notice and posted agenda required by the Sunshine Law.
One such meeting at issue was a marathon October 18, 2007 meeting of the council’s Land Use Committee to take public testimony and then deliberate on two measures needed to allow the Honua Ula/Wailea 670 development to proceed. According to minutes of the meeting, cited in the court’s opinion, “approximately twenty-eight” people testified at the meeting before public testimony was wrapped up and the committee began its deliberations.
After two hours of discussion, the meeting was then recessed until the following week. No agenda for the reconvened meeting was publicly posted, and there was no discussion of how or whether the public needed to be advised of the meeting. The next meeting was also recessed and reconvened at a later time, and this happened 12 times before a final meeting was held on Nov. 20, 2007.
Each time a meeting was recessed, there was a verbal announcement of where and when it would be reconvened.
“There is no indication in the record that the LUC gave any other form of public notice for the meetings,” the court noted.
The Sunshine Law provides that “items of reasonably major importance not decided at a scheduled meeting shall be considered only at a meeting continued to a reasonable day and time.” Plaintiffs argued the ongoing serial meetings violated this provision.
But both the Circuit Court and Intermediate Court of Appeals sided with the county, finding the law contains no specific prohibition on meetings being recessed and reconvened more than once.
The Supreme Court agreed, noting that the Legislature didn’t “expressly limit the number of continuances” and provided no procedures for recessing and continuing meetings, a not too subtle dig at the Legislature for leaving huge areas of legal ambiguity when adopting and amending the Sunshine Law.
The court also noted the Office of Information Practices had previously advised that a verbal announcement before recessing is sufficient to meet the law’s requirements. Based on these factors, and a review of the legislative history of the provision, the court declined to find the continued meetings violated the Sunshine Law.
However, the court then reaffirmed that public agencies “are constrained at all times by the spirit and purpose of the Sunshine Law.”
Attorney Collins said this was a major win for openness.
“The opinion adopted what I had been arguing since the trial court — if there’s a question, you have to look at the legislative history and prior OIP opinions, and not simply rely on general guidelines of statutory construction,” Collins said.
The court went on to suggest several options to comply with the spirit of the Sunshine Law when dealing with recessed meetings, including holding “separate meetings, with separate agendas, on different aspects of the same bill,” or periodically re-opening public testimony to allow the public to weigh in again when deliberations drag on through multiple recessed meetings.
“Such procedural measures maximize the public’s ability to observe and participate in the government processes,” the court advised. “Thus, a board should consider implementing such devices to ensure that the ‘formation and conduct of public policy’ is ‘conducted as openly as possible…,’” echoing the “declaration of policy and intent” incorporated into the Sunshine Law.
“The Sunshine Law is essentially a procedural guarantee to protect the public’s interest in government decision-making,” the decision found.
The public “should have a realistic, actual opportunity to participate,” rather than a theoretical right to participate “in name only,” the court argued.
Although the law doesn’t prohibit meetings to be recessed multiple times, the court concluded: “It is manifest that if no notice was required for reconvened meetings, members of the public would effectively be shut out of the entire deliberation process, which would certainly violate the Sunshine Law’s requirement that ‘deliberations’ be ‘conducted as openly as possible.’”
The court had less trouble dealing with the memos circulated by members of the county council in which they proposed and argued for amendments to the bills relating to the Wailea 670 development. These memos were circulated to members between meetings of the council. The court easily found they had violated the Sunshine Law, overturning rulings by the Circuit Court and Intermediate Court of Appeals.
Items discussed in the limited-circulation memos were later adopted in public meetings with little or no substantive discussion “based on justifications set forth in memoranda distributed outside of a public meeting … effectively limiting public scrutiny of the MCC’s rationale for passing the Wailea 670 bills and the factors that ultimately led to the MCC’s decision.”
Although the court declined to throw out the council’s approval of the development because of these sunshine violations, it sent the case back to the Circuit Court to consider the award of attorneys fees to the plaintiffs.
Collins said 2008 was a very bad year financially for his law practice because of the amount of work required for this case.
“I would be happy just to be paid for the work I did,” Collins said, noting that the law provides for awarding fees in order to encourage people to use the courts where necessary to enforce the Sunshine Law.
It’s worth noting that the Supreme Court’s decision gives the Office of Information Practices a much-needed boost by highlighting its key role in making sure state and county agencies conduct their business “as openly as possible.”
The court favorably cited seven OIP opinions, and reaffirmed its deference to the agency’s rulings, except in those instances where they are found to be “palpably erroneous.”
This appears to represent a welcome reversal for OIP, which “temporarily” stopped issuing opinions mandating disclosure in 2009, blaming an earlier Supreme Court decision which it said undercut its authority.
Read Ian Lind’s blog at iLind.net.