Thursday, August 29, 2013

Ain't No Sunshine When You're Not Giving the Public a Meaningful Opportunity to Participate -- Technically

Petitioners, who are residents of Maui, filed Kanahele v. Maui County Council based on the Maui County Council’s passage of two bills related to the development of a residential community on 670 acres of land located in Wailea, Maui (Wailea 670 project).

Source: Honua‘ula Current Master Plan,

The proposed Wailea 670 project includes a golf course, single- and multi­family residences, recreation and open spaces, and village mixed-use sub-districts. Honua'ula is the owner and developer of the land in question. The Council, on the recommendation of its Land Use Committee, passed two land use related bills in connection with the Wailea 670 project.

Petitioners filed suit in the circuit court challenging the bills’ passage, arguing that the Council and Committee failed to satisfy the requirements of the State open meetings law, HRS chapter 92, Hawaii’s Sunshine Law.  The circuit court, and subsequently the intermediate court of appeals (ICA), ultimately ruled against Petitioners. Petitioners then appealed to the Hawaii Supreme Court, whose decision is discussed below.

Petitioners’ first challenge arises from the Committee’s meeting that had been initially noticed for October 18, 2007.  It was reconvened and then continued successively in the same manner on October 23, 25, 29, November 1, 5, 7, 8, 13, 16, 19, and 20. Thus, the October 18 meeting was continued and reconvened twelve times until the final meeting on November 20.

Petitioners’ second challenge arises from the actions of several council members who offered several amendments to the proposed bills.  There were a total of 14 memoranda sent between councilmembers in February 2008. Petitioners claim that no public testimony or notice was given regarding these Council amendments.

First, the Hawaii Supreme Court addressed “whether the ICA erred in holding that the recessing and reconvening of the October 18, 2007 [Committee] meeting and the February 8, 2008 [Council] meeting comported with the notice and public oral testimony requirements of the Sunshine Law.” The Court held that the Committee and Council did not violate the Sunshine Law by continuing and reconvening the October 18, 2007 meeting and February 8, 2008 meeting beyond a single continuance. The Sunshine Law does not require the Committee and Council “to post a new agenda and to accept oral testimony at each meeting beyond the first continuance.”

Second, the Court considered “whether the Sunshine Law permits board members to circulate written memoranda among all other members, in which board members [i.e., councilmembers] present proposed actions, include justifications for the proposals, and seek ‘favorable consideration’ of the proposals.” The Court held that “the challenged memoranda do not fall within any of the ‘permitted interactions’ listed in HRS § 92-­2.5,” because “the memoranda were distributed among all of the members of the [Council] rather than among only two members of the board.” In addition, the memoranda violated the Sunshine Law, because it asked members for vote commitments. The memoranda were not simply “informational.”

In summary, the Court held as follows:

  1. The Council and Committee did not violate the Sunshine Law by reconvening the October 18, 2007 and February 8, 2008 meetings beyond a single continuance without posting a new agenda and without accepting public oral testimony at every reconvened meeting.
  2. The Council violated the Sunshine Law by distributing written memoranda among its members outside of a duly noticed meeting, through which the members impermissibly sought a commitment to vote. However, it does not violate final passage of the bills. Petitioners’ claim relates to violations related to the first reading of the bills, which was not a final action for purposes of Sunshine Law appeals.

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