Disappeared News v. Maui Planning Commission ( 2020 )

Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
24-JUN-2020
09:48 AM
SCPW-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
DISAPPEARED NEWS; THE HAWAIʻI INDEPENDENT;
and VICTOR GREGOR LIMON, Petitioners,
vs.
MAUI PLANNING COMMISSION; HEARINGS OFFICER of the Maui Planning
Commission for Docket No. SM1 2018/0011; and COUNTY OF MAUI,
Respondents,
and
BRE ICONIC GWR OWNER, LLC; MĀLAMA KAKANILUA; PELE DEFENSE FUND;
HOʻOPONOPONO O MĀKENA; and DIRECTOR OF THE DEPARTMENT OF PLANNING
OF THE COUNTY OF MAUI, COUNTY OF MAUI,
Respondents/Real Parties in Interest.
ORIGINAL PROCEEDING
ORDER DENYING WITHOUT PREJUDICE PETITION FOR WRIT OF MANDAMUS
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
On May 21, 2020, Petitioners filed a petition for writ
of mandamus in this original proceeding. On June 15, 2020, the
respondent Hearing Officer filed a letter of no response. Also
on June 15, 2020, answers were filed by Respondents Maui
Planning Commission and County of Maui (“Planning Commission”);
Mālama Kakanilua, Pele Defense Fund, and Hoʻoponopono O Mākena;
and BRE Iconic GWR Owner, LLC (“BRE”). Respondent Director of
the Department of Planning, County of Maui (“Department of
Planning”) filed a joinder to the answer filed by the Planning
Commission.
In Freitas v. Administrative Dir. of the Courts, 104 Hawaiʻi
483, 92 P.3d 993 (2004), the following was stated:
“courts consistently have found a right of access to
civil proceedings and quasi-judicial administrative
proceedings.” Detroit Free Press v. Ashcroft, 195
F. Supp. 2d 937, 942 (E.D.Mich.2002) (emphasis added)
(brackets and internal quotations omitted); see also
Fitzgerald v. Hampton, 467 F.2d 755, 766 (D.C. Cir.
1972) (finding due process right of access by the
public and press to Civil Service Commission
hearing). The U.S. District Court in Detroit Free
Press held that there was a right to a public
deportation hearing, 195 F. Supp. 2d at 943–44, and
the plaintiff newspaper agency had a First Amendment
right of access to immigration deportation
proceedings. Id. at 944. That court applied a
strict scrutiny analysis in determining the propriety
of closing the immigration proceedings. Id. at 946–
47.
The parties appear to dispute the applicability of Freitas to
the circumstances of this case. We do not address the
applicability of Freitas and related law at this time. We note
that representations in the email communications, which were
attached to BRE’s submission to this court, reflect discussions
among the parties regarding the issue raised in the petition.
The deputy corporation counsel representing the Department of
Planning stated in an email that the Planning Department did not
object to opening the proceedings to the public. The email
2
communications also appear to indicate that the Planning
Department, BRE, and Intervenors agree that public access should
be provided to the contested hearing by the Planning Commission.
It appears that the parties generally favor arranging for
livestream or alternative means for the public to observe the
proceedings. We further note that the Planning Commission’s
answer contends that the Commission was not given an adequate
opportunity to address Petitioners’ request prior to the filing
of the petition in this court and that “no denial of such right
of public access has actually occurred.”
Based on the record before this court, and the
information and representations in the submissions, it therefore
appears that, at this time, there may be an alternative means
for Petitioners to seek the requested relief prior to the
scheduled hearing. See Kema v. Gaddis, 91 Hawaiʻi 200, 204, 982
P.2d 334, 338 (1999) (a writ of mandamus is an extraordinary
remedy that will not issue unless the petitioner demonstrates a
clear and indisputable right to relief and a lack of alternative
means to redress adequately the alleged wrong or obtain the
requested action).1 Accordingly, and under these circumstances,
1
The Planning Commission’s timely resolution of this issue does not
depend on whether the parties are able to reach an agreement as to public
access to the contested hearing.
3
IT IS HEREBY ORDERED that the petition for writ of
mandamus is denied without prejudice.
DATED: Honolulu, Hawaiʻi, June 24, 2020.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
4