Two media outlets have filed a legal challenge to the Honolulu Police Commission’s long-standing practice of conducting closed-door hearings for officers seeking taxpayer-funded attorneys.
On Monday, Honolulu Civil Beat and Oahu Publications Inc. — the parent company of the Honolulu Star-Advertiser — together petitioned the Hawaii Supreme Court to weigh in on the commission’s decision to close such proceedings to the public and the press.
In court papers, the news organizations attorneys, Brian Black and Jeff Portnoy, argued that the public and the press have a First Amendment right to access the quasi-judicial proceedings.
“The public has a right to know how the government is treating these police officers and using the taxpayers’ money to pay for legal counsel for these police officers,” said Black, executive director of the Civil Beat Law Center for the Public Interest.
Portnoy said the Hawaii Supreme Court has already set out the ground rules for judges to follow in ruling whether a particular court proceeding should be open. “Those same guidelines clearly apply to administrative proceedings, in our view,” he said.
The issue came to a head at a July 19 police commission meeting in which two HPD officers, Minh-Hung “Bobby” Nguyen and Daniel Sellers, were scheduled to have a contested case hearing over whether their legal fees in a lawsuit related to an ongoing U.S. Justice Department corruption probe should be paid for by city taxpayers.
Both Nguyen and Sellers are central figures in the ongoing criminal investigation of former Honolulu Police Chief Louis Kealoha and his wife, Katherine, a city prosecutor.
The Kealohas have been accused of trying to frame a family member for the theft of their mailbox, with the help of HPD officers, so that they could gain the upper hand in a lawsuit.
At the July 19 meeting, commissioners voted 4-2 to close the hearings despite the vehement objection of Commissioners Loretta Sheehan and Steven Levinson, both of whom argued the public had a right to access under the U.S. and state constitutions.
The discussion got so heated that Sheehan, a former assistant U.S. attorney, and Levinson, a retired associate justice on the Hawaii Supreme Court, threatened to walk out.
Members of the press, including those from Civil Beat and the Star-Advertiser, also objected to closing the hearings to the public.
Black said the current legal challenge is straight-forward.
Under the First Amendment to the U.S. Constitution, the public and the press have a presumptive right of access to court proceedings. That standard, he said, also applies to quasi-judicial government proceedings, such as the contested case hearings for police officers.
He noted that the Hawaii Supreme Court had already said as much in a 2004 ruling.
“Fundamentally, this comes down to whether or not there’s a right under the Constitution to observe these kinds of proceedings,” Black said. “It’s just like in a courtroom. No matter what kind of case it is, whether it’s a wage dispute or a criminal case for murder, the public has a constitutional right to access. It’s the same thing here.”
Portnoy said that even if the commission wanted to close the proceedings to the public, it didn’t follow the rules for doing so.
“It’s pretty clear that at least two police commissioners agree with us,” Portnoy said. “I think that those two commissioners attempted to persuade their colleagues by citing their view of the law. But they were not persuasive, so now we have to ask the Supreme Court to weigh in.”
Andrew Pereira, a spokesman for Honolulu Mayor Kirk Caldwell, said the Department of Corporation Counsel received a copy of the petition late Monday and is in the process of reviewing it.
This is the second time this year Black has taken the Honolulu Police Commission to court.
In January, the nonprofit law firm sued the commission over alleged violations of the state’s Sunshine Law when it met behind closed doors to approve a $250,000 payoff for Kealoha after he was named as a target of the DOJ’s criminal investigation. That case is pending.
The Civil Beat Law Center for the Public Interest is an independent nonprofit organization created with funding from Pierre Omidyar, who is also publisher of Civil Beat.org. Civil Beat Editor Patti Epler sits on its board of directors.
Read the petition here: