Kanahele v. Maui County Council.Â

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Electronically Filed
Supreme Court
SCWC-29649
08-AUG-2013
01:39 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
DANIEL K. KANAHELE, WARREN S. BLUM, LISA BUCHANAN,
JAMES L. CONNIFF, and CAMBRIA MOSS,
Petitioners/Plaintiffs-Appellants,
vs.
MAUI COUNTY COUNCIL and COUNTY OF MAUI,
Respondents/Defendants-Appellees,
and
HONUA#ULA PARTNERS, LLC,
Respondent/Defendant-Intervenor-Appellee.
SCWC-29649
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29649; CIV. NO. 08-1-0115(3))
AUGUST 8, 2013
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.
OPINION OF THE COURT BY POLLACK, J.
Petitioners/Plaintiffs-Appellants Daniel K. Kanahele,
Warren S. Blum, Lisa Buchanan, James L. Conniff, and Cambria Moss
(collectively “Petitioners”) seek review of the October 19, 2012
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Judgment on Appeal of the Intermediate Court of Appeals (ICA),1
filed pursuant to its June 29, 2012 Summary Disposition Order,
affirming the January 22, 2009 judgment entered by the Circuit
Court of the Second Circuit (circuit court)2 in favor of
Respondents/Defendants-Appellees Maui County Council (MCC) and
the County of Maui and Respondent/Defendant-Intervenor-Appellee
Honua#ula Partners, LLC (Honua#ula), and against Petitioners.
Petitioners, who are residents of Maui, filed this
appeal based on the MCC’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). The Wailea 670
project consists of developing a golf course, single- and multi-
family residences, recreation and open spaces, and village mixed-
use sub-districts. Honua#ula is the owner and developer of the
land in question. The MCC and its committee, the Land Use
Committee (LUC), passed two bills (Wailea 670 bills) in
connection with the Wailea 670 project. Petitioners filed suit
in the circuit court challenging this passage, arguing that the
MCC and LUC failed to satisfy the requirements of the State open
meetings law, Hawai#i Revised Statutes (HRS) Chapter 92, Part I,
commonly known as the “Sunshine Law.”
1
The Honorable Craig H. Nakamura, Chief Judge, the Honorable Alexa
D.M. Fujise, and the Honorable Lisa M. Ginoza, presiding.
2
The Honorable Joseph E. Cardoza, presiding.
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I. BACKGROUND
The Wailea 670 project has been in the planning stages
since 1986. The LUC’s first public meeting on the project took
place in February 2002, followed by meetings in January (site
visit), March, June, July and October of 2006 and January, March,
July, September, October and November of 2007. At issue in this
case is the series of thirteen LUC meetings convened between
October 18, 2007 and November 20, 2007, when the LUC passed the
Wailea 670 bills for consideration by the MCC, as well as the
four meetings held by the MCC in February and March 2008, prior
to the MCC’s final passage of the bills on March 18, 2008.
A. LUC and MCC meetings
1. October 18, 2007 meeting
On October 11, 2007, the LUC filed a “Meeting Agenda”
with the Office of the County Clerk for a meeting to take place
on October 18, 2007 at 9:00 a.m. The agenda identified the
subject matter of the meeting as “LU-38 CHANGE IN ZONING AND
PROJECT DISTRICT PHASE I APPROVAL FOR ‘HONUA#ULA/WAILEA 670’
RESIDENTIAL DEVELOPMENT.” The agenda provided that the LUC was
in receipt of two proposed bills that it would be considering;
one bill would repeal Chapter 19.90 of the Maui County Code and
establish a new Chapter 19.90A (Project District bill) and the
second bill would repeal Ordinance No. 2171 (1992) and establish
conditional zoning for the 670 acres of land involved in the
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project (Change in Zoning bill). The agenda also stated that
oral or written testimony on any agenda item would be accepted.
The minutes for the October 18 meeting reflect that
forty people attended the meeting, in addition to the LUC
members, staff and certain named individuals.3 Approximately
twenty-eight people testified at the meeting, including
Petitioners Conniff and Kanahele. Each person was given
approximately four minutes to speak.
The LUC closed the public testimony portion of the
meeting after everyone who had submitted requests to testify had
done so. The LUC began deliberating at 2:40 p.m. At 4:55 p.m.,
LUC Chair Michael J. Molina announced, “This meeting for October
18th, 2007, related to LU-38 is in recess until Monday morning,
October 22nd, 9:00 a.m., here in the Council chambers.”
No new agenda was posted for the October 22 reconvened
meeting. There is nothing in the record indicating that the date
and time of the continued hearing was posted at the Council’s
chambers or at any other location.
The October 22, 2007 reconvened meeting began at 9:07
3
For each meeting, the minutes reflect who was present. The
council members, staff, administrators, and certain individuals such as
Charles Jencks, Honua#ula’s representative, attorneys for Honua#ula, and
Honua#ula’s entitlement consultant are listed by name. There is also a
notation for “additional attendees.” For the October 18, 2007 meeting, the
minutes reflected that there were forty additional attendees. For most of the
twelve LUC reconvened meetings, there were between five and ten additional
attendees. However, it is unknown whether the additional attendees were
present in connection with the named individuals or were members of the
general public.
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a.m. The record does not reflect any discussion among the LUC
members regarding whether the public had been given any notice of
the meeting aside from the oral announcement at the conclusion of
the prior meeting. At the beginning of the meeting, Chair Molina
announced that the board would take a break at 1:00 p.m. and
“come back a little later in the afternoon,” at around 3:30 p.m.
because “we have some Members that have to leave for some prior
commitments.” Chair Molina continued, “For the public’s
information, this is an off-week and Members do make prior
commitments to address other matters in our community. . . . And,
so, that is why today . . . we have some what [sic] of an unusual
schedule and how we will proceed.”
The meeting was recessed t 12:51 p.m. and then
reconvened again at 3:50 p.m. Chair Molina explained that
although the plan had been to meet until 5 p.m. that day, the LUC
only had a “bare quorum” present and therefore it was his opinion
that it would be better to reconvene at another date and time.4
He announced, “So, with that being said, this meeting is in
recess until tomorrow, Tuesday, October 23rd, 9:00 a.m., right
here in the Council Chambers.” The meeting was recessed at 3:53
p.m.
4
Five members of the nine-member Council constitute a quorum.
Charter of the County of Maui (CCM) § 3-5(4) (2013), available at
http://www.co.maui.hi.us/documents/24/197/Charter%20(2013%20Edition)_201303212
115480964.pdf. “Unless otherwise provided . . . , no action of the council
shall be valid or binding unless adopted by a vote of five or more members of
the council.” Id.
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The meeting, which had been initially noticed for
October 18, 2007, 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. The circuit court entered a finding that each meeting was
reconvened “due to time constraints or the loss of quorum.”
During this time that the LUC reconvened twelve
meetings, the LUC met twice, on October 31, 2007 and November 14,
2007, in order to consider unrelated permit applications. The
LUC posted agendas for both meetings.
For the Wailea 670 bills, no new agendas were posted
for the twelve reconvened meetings. At the end of each meeting,
the LUC would announce the new date, time and place for the
reconvened meeting. There is no indication in the record that
the LUC gave any other form of public notice for the meetings.
The LUC employed two criteria in determining when to
schedule the next continued meeting; the availability of the
committee members, and the LUC’s belief, expressed on at least
three separate occasions, that the continuance was required to be
held within five days.5 The result was that the continued
5
For example, at the end of the October 25, 2007 reconvened
meeting, during the members’ discussion of scheduling the next meeting, Chair
Molina stated, “The only options we have as far as recess dates I’m looking
at, it’s either the 29th or the 30th.” An LUC member commented, “[I]t’s too
bad that the number of days required to recess ends on the 30th, because the
following day, . . . that would have been ideal to continue,” to which Chair
(continued...)
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meetings were scheduled in an unpredictable manner.6 Meetings
were scheduled in the mornings, afternoons, and evenings and
varied significantly in length. In addition, many meetings were
scheduled back-to-back, or only one or two days hence.
The transcripts of the meetings do not reflect any
discussion or consideration of whether the continued date and
time would be convenient or reasonable for the public to attend.
The circuit court found that during the twelve
reconvened meetings, “the LUC considered reports and other
documents and information related to the Wailea 670 Bills.” The
circuit court found that “[t]he deliberation process from October
22 through November 20, 2007 encompassed over 45 hours of
deliberation by the LUC as part of the decision making process.”
(Emphasis added).
After October 18, 2007, no further oral testimony from
the public was received by the LUC. With the exception of two
meetings (November 13 and 16), the LUC members sought and
received extensive input from Mr. Jencks, Honua#ula’s
representative. Mr. Jencks was present at every reconvened
(...continued)
Molina responded, “Yeah, it’s unfortunate.”
6
The reconvened meeting times were as follows, excluding recesses
taken throughout the meetings: October 22, 2007 (9:07 a.m. to 3:53 p.m.);
October 23 (9:12 a.m. to 4:15 p.m.); October 25 (9:04 a.m. to 10:50 a.m.);
October 29 (5:36 p.m. to 8:49 p.m.); November 1 (1:33 p.m. to 5:33 p.m.);
November 5 (9:07 a.m. to 3:50 p.m.); November 7 (9:06 a.m. to 3:11 p.m.);
November 8 (1:35 p.m. to 3:44 p.m.); November 13 (5:32 p.m. to 9:40 p.m.);
November 16 (1:40 p.m. to 1:48 p.m.); November 19 (9:15 a.m. to 4:04 p.m.);
November 20 (2:35 p.m. to 4:24 p.m.).
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meeting.
At the conclusion of the final reconvened meeting on
November 20, 2007, the LUC approved the Wailea 670 bills and
forwarded them to the MCC for formal consideration. The LUC
prepared a report to the MCC and recommended that the MCC pass
the Wailea 670 bills on first reading.
2. February 8, 2008 meeting
The agenda for the MCC meeting of February 8, 2008,
listing the first reading of the Wailea 670 bills as an agenda
item, was filed with the County Clerk’s office on February 1,
2008.
Prior to the February 8 meeting, MCC Chair Riki Hokama
distributed three memoranda, all dated February 7, 2008, to the
other MCC members. The first memorandum detailed floor
amendments relating to the wastewater component of the Change in
Zoning bill that Hokama intended to propose at the February 8
meeting. Hokama explained the substance of the proposed
amendments and detailed the language that he proposed to add to,
or delete from, the bill.
Chair Hokama’s second memorandum detailed two proposed
amendments, also related to the water component of the Change in
Zoning bill, which would require Honua#ula to offer the County
the right to purchase the water system it develops at the cost of
development, and also require that the water rates for the
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residential workforce housing units be no higher than the water
rates set by the County.
His third memorandum detailed a proposed amendment to
clarify that the maximum number of dwelling units referenced in
the Project District bill includes any offsite residential
workforce housing units. All three memoranda concluded, “I would
appreciate your favorable consideration of these proposed floor
amendments. Should you have any questions, please contact me or
the Committee staff[.]” The names and extension numbers of two
staff members were also included.
Member Michelle Anderson also sent a memorandum dated
February 8, 2008, to Chair Hokama and the other MCC members,
detailing three amendments to the Change in Zoning bill that she
intended to propose at the upcoming meeting. The amendments
would require Honua#ula to provide a bond and annual compliance
reports to the MCC, and require that all residential units in the
project be constructed to meet applicable Energy Star
requirements. Each proposed amendment was followed by a section
titled “Justification,” which detailed Anderson’s rationale for
the proposals. The memorandum ended, “I would appreciate your
favorable consideration of these proposed floor amendments.
Should you have any questions, please contact me.”
Chair Hokama’s three memoranda and Anderson’s
memorandum contained notations indicating that in addition to
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being sent to the other MCC members, copies were sent to the
County Clerk, Director of Council Services, Planning Director,
and Corporation Counsel.
Public oral testimony was taken at the February 8, 2008
meeting, including oral testimony by Petitioners Kanahele,
Buchanan, and Conniff. All individuals who submitted requests to
testify were given the opportunity to do so before Chair Hokama
closed the oral testimony portion of the meeting. The MCC did
not consider any of the proposed amendments detailed in Chair
Hokama and Member Anderson’s memoranda during the February 8
meeting. At 5:02 p.m., Chair Hokama announced, “The Council
shall stand in recess, till 9:00 a.m. Monday morning [February
11], when we shall reconvene in these chambers.”
No new agenda was posted for the February 11, 2008
meeting.
Prior to the February 11 meeting, Member Anderson
prepared two memoranda, both dated February 11. The first
memorandum set forth five amendments to the Project District bill
that Anderson intended to propose at the February 11 meeting.
The first three amendments sought to clarify the percentage of
dwelling units that would be constructed, phase the development
of dwelling units to minimize the impact on traffic during
construction, and incorporate by reference the conceptual land
use map for the project. The fourth and fifth amendments
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concerned the “grading of the project site and native Hawaiian
access trails.”
Anderson’s second memorandum detailed two amendments to
the Change in Zoning bill that she intended to propose at the
February 11 meeting. One amendment concerned a timeframe for the
widening of a highway prior to the commencement of construction.
The second amendment sought to “re-describe the conservation
easement” on the project site and to “allow for title to the
conservation easement to be conveyed to a land trust.”
Both of Anderson’s memoranda concluded in a manner
identical to Chair Hokama’s February 7 memoranda, by stating, “I
would appreciate your favorable consideration of these proposed
floor amendments. Should you have any questions, please contact
me or the Committee staff[.]” The names and extension numbers of
two staff members were also included. The memoranda contained
notations indicating that copies were sent to the County Clerk,
Director of Council Services, Planning Director, and Corporation
Counsel.
At the February 11 reconvened meeting, the MCC
considered the proposed amendments. During the MCC’s
consideration of the amendments, the members were asked to
reference the memoranda that had been distributed.7
7
For example, before consideration of Member Anderson’s proposed
amendments, Chair Hokama stated, “I’d like to refer you now to the remaining
three different communications from . . . Ms. Anderson, regarding proposed
(continued...)
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The MCC voted to adopt all of the proposed amendments.
Among the amendments passed unanimously was Anderson’s amendment
to the Change in Zoning bill, to add a condition requiring
Honua#ula to provide a bond or cash deposit to the MCC in an
amount that would assure compliance with the zoning conditions.
Chair Hokama then asked Mr. Jencks to come forward to
“provide comment” on the amendments. Mr. Jencks went through
each amendment that had been passed that day and made suggestions
or indicated Honua#ula’s position on the amendment. Mr. Jencks
was specifically asked to comment on the February 8 and February
11 memoranda distributed by Member Anderson and the amendments
proposed therein, which he did by referencing specific sentences
from the memoranda. He asked the MCC to “reconsider” certain
amendments that had been passed. For example, Mr. Jencks stated
that the bond requirement would be “impossible” to comply with,
due to the difficulty in estimating the value of future work and
his inability to obtain a bond until the construction drawings
were completed, which he estimated would take five years.
Towards the end of the meeting, Chair Hokama suggested
that the MCC either pass the bills on first reading or recess the
meeting. Chair Hokama stated, “And the Chair expects any
(...continued)
amendments. The first one I would ask is that you refer to the February 8
memorandum from her to you, Members, so if you can have that before you for
consideration[.]”
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proposed revision shall be completely written up in advance of
the meeting reconvening for the courtesy of the other Members to
review so that we can take votes and make a determination on this
application.” Chair Hokama announced a recess of the meeting
until February 14, 2008.
No new agenda was posted for the February 14 meeting.
Prior to the February 14 meeting, four MCC Members
prepared and distributed a total of eight memoranda to the other
Members. The memoranda contained notations indicating that
copies were sent to the County Clerk, Director of Council
Services, Planning Director, and Corporation Counsel.
Member Michael J. Molina prepared three memoranda,
dated February 13, 2008. The first memorandum stated that he
intended to propose reconsideration of the Council’s vote to
adopt the bond requirement for the Change in Zoning bill, citing
Mr. Jencks’ comments at the February 11 meeting. Molina stated
that if his motion for reconsideration was carried, then the bill
would return to the point when Anderson’s motion to amend the
bill to include the bond requirement was pending. Molina’s
second memorandum stated that he intended to propose
reconsideration of the MCC’s vote to add a new condition relating
to energy systems, again citing Mr. Jencks’ comments. The third
memorandum proposed another reconsideration of the MCC’s vote on
grading, in order to incorporate revisions requested by Mr.
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Jencks.
Member Anderson also prepared and distributed three
memoranda, dated February 13, 2008. The memoranda detailed
Anderson’s proposed motion to reconsider the MCC’s vote approving
the bond requirement, citing Mr. Jencks’ concerns at the prior
meeting. Contrary to Molina’s motion to reconsider and rescind
the amendment entirely, Anderson proposed reconsidering the vote
and amending the primary motion to permit the bond to be provided
in four five-year phases. Anderson also moved to reconsider the
MCC’s vote on the grading condition and to replace one of the
maps that had been attached to the Change in Zoning bill, in
light of Mr. Jencks’ comments. The memoranda on grading and the
map were accompanied by a separate “Justification Sheet,”
detailing Anderson’s rationale for her motions.
Member Bill Medeiros distributed a memorandum, dated
February 13, 2008, setting forth his intent to move for
reconsideration of the MCC’s votes related to the wastewater
treatment and sewage disposal conditions of the Change in Zoning
bill, also citing Mr. Jencks’ concerns.
Member Gladys Baisa distributed a memorandum, dated
February 13, 2008, regarding her proposed motion to reconsider
the amendment to the Project District bill, which limited the
number of dwellings permitted to be constructed in the project
district per year, again citing Mr. Jencks’ comments.
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All eight memoranda distributed concluded with the same
phrase: “I would appreciate your favorable consideration of my
proposal(s). Should you have any questions, please contact me or
the Committee staff[.]” According to Chair Hokama’s deposition
testimony, all of the memoranda distributed were “prepared as a
matter of courtesy.”
On February 14, 2008, the meeting was reconvened at
9:05 a.m. At one point during the Members’ discussion of Member
Medeiros’ motion to reconsider the MCC’s vote requiring Honua#ula
to construct a wastewater transmission system and a reclaimed
water system, Member Anderson expressed her confusion over the
motion. When Anderson asked to clarify the motion to reconsider
proposed by Medeiros, Chair Hokama responded, “Yeah, so, . . .
you have his proposal, and you must . . . just take what he has
presented, Ms. Anderson, as part of his communication to the
Members.”
Several of the proposed motions for reconsideration
were passed with no discussion (other than stating the proposed
motion) prior to voting on the motion. For example, Member
Molina’s motion to reconsider the MCC’s vote regarding the bond
requirement was passed unanimously with no discussion on the
merits of reconsidering the vote.
At the conclusion of the February 14 meeting, the MCC
voted to pass the Wailea 670 bills on first reading.
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3. Circuit court proceedings initiated
On March 5, 2008, Petitioners filed a complaint in the
circuit court against the MCC and County of Maui, alleging
violations of the Sunshine Law. Petitioners stated that the
circuit court had subject matter jurisdiction over the claims for
relief pursuant to HRS §§ 603-21.5,8 92-129 and 92-13.10
Petitioners alleged that the LUC “did not accept public
8
HRS § 603-21.5(a)(3) (Supp. 2008) provides that the circuit courts
generally have jurisdiction over civil actions and proceedings.
9
HRS § 92-12 (1993) constitutes the enforcement provision of the
Sunshine Law and provides:
(a) The attorney general and the prosecuting attorney shall
enforce this part.
(b) The circuit courts of the State shall have jurisdiction
to enforce the provisions of this part by injunction or
other appropriate remedy.
(c) Any person may commence a suit in the circuit court of
the circuit in which a prohibited act occurs for the purpose
of requiring compliance with or preventing violations of
this part or to determine the applicability of this part to
discussions or decisions of the public body. The court may
order payment of reasonable attorney's fees and costs to the
prevailing party in a suit brought under this section.
(d) The proceedings for review shall not stay the
enforcement of any agency decisions; but the reviewing court
may order a stay if the following criteria have been met:
(1) There is likelihood that the party bringing the
action will prevail on the merits;
(2) Irreparable damage will result if a stay is not
ordered;
(3) No irreparable damage to the public will result from
the stay order; and
(4) Public interest will be served by the stay order.
HRS § 92-12 was amended in 2012 to add a provision that
“[o]pinions and rulings of the office of information practices shall be
admissible in an action brought under this part and shall be considered
as precedent unless found to be palpably erroneous.” 2012 Haw. Sess.
Laws Act 176, § 3 at 616.
10
HRS § 92-13 (1993) provides that “[a]ny person who willfully
violates any provisions of this part shall be guilty of a misdemeanor, and
upon conviction, may be summarily removed from the board unless otherwise
provided by law.”
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testimony and did not file and post a notice of the meeting” for
the LUC meetings held between October 22, 2007 and November 20,
2007. Additionally, Petitioners stated that during those
meetings, the LUC “reviewed, discussed and deliberated
information that was not available at the October 18, 2007
meeting[.]” Petitioners called the LUC’s November 20, 2007
decision to pass the proposal out of committee for first reading
before the MCC the “First Disputed Action.”
Petitioners also alleged that the MCC “did not accept
public testimony and did not file and post a notice” for the
meetings held on February 11 and 14, 2008.
Petitioners asserted that “[o]n or before February 8,
2008, several members of [the MCC] transmitted and circulated to
each other proposed amendments to the February 8 Agenda Proposed
Action,” and that these written communications were done “before
and outside the noticed February 8 meeting.” Petitioners called
these written communications the “Second Disputed Action.”
Petitioners further alleged that MCC members
transmitted and circulated proposed amendments to the February 8
proposed action prior to the meeting on February 14, 2008, and
that these written communications were done outside of a noticed
meeting. These communications were called the “Third Disputed
Action.”
The complaint concluded with the following request for
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a judgment against the MCC:
Wherefore Plaintiffs pray and demand judgment against
defendants voiding actions taken at the November 20, 2007
meeting and the February 14, 2008 meeting, including the
First, Second and Third Disputed Action, inconsistent with
Haw. Rev. Stat. 92-3, Haw. Rev. Stat. 92-7 and therefore
void and an award of reasonable attorney’s fees and costs.
(Emphasis added).
On March 11, 2008, Petitioners filed a Motion for
Preliminary Injunction. Petitioners moved for an injunction
staying any actions by the MCC related to the November 20, 2007
and February 14, 2008 decisions. The hearing on the motion was
scheduled for April 8, 2008.11
3. March 18, 2008 MCC meeting
On March 11, 2008, the MCC posted an agenda for a
meeting scheduled for March 18, 2008. The agenda provided that
the MCC would conduct a second and final reading of the Wailea
670 bills.
On March 18, 2008, public oral testimony was taken from
the start of the meeting at 9:03 a.m. until 4:07 p.m., when all
members of the public who came to testify had completed their
testimony. Petitioners Conniff, Kanahele, and Buchanan testified
during this meeting. In total, approximately forty-eight members
of the public testified in regard to the Wailea 670 bills. Each
person was given approximately three minutes to speak.
11
Petitioners’ March 11, 2008 Ex Parte Motion to Shorten Time for
Hearing on Motion for Preliminary Injunction was denied by the circuit court.
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After the close of public testimony and the
consideration of several unrelated bills, the MCC considered the
Change in Zoning bill. The MCC considered several motions for
amendments to the bill, all of which were defeated.
Two of the motions considered were brought pursuant to
recommendations by the U.S. Fish and Wildlife Service. The first
motion by Chair Hokama moved to amend the conditions of zoning to
require Honua#ula to prepare an assessment of the development’s
impact on certain native species. During the discussion, Chair
Hokama referred to a letter from the U.S. Department of the
Interior and stated that the U.S. Fish and Wildlife Service
specifically requested this condition. Member Anderson added
that the request was made on February 21, “and it’s only because
they were informed by people about what was going on in this
area, not by the applicant.” Member Jo Anne Johnson also
commented, “I think that it’s unfortunate that members of the
public actually have to bring these kinds of situations to the
attention of the very agencies that are supposed to be consulted
to begin with.”
Later in the discussion, Member Anderson noted, “[F]or
those Members who feel conditions at this stage of the game would
delay the final decision on this for two weeks to a month
possibly[,]” “I hope the Members don’t feel that these conditions
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should not be supported because Mr. Jencks wants a final decision
tonight.” The motion was defeated.
The second motion, again made on behalf of Chair
Hokama, proposed adding a condition to require Honua#ula to
complete an additional botanical survey of the project site to
assess the potential impact on threatened and endangered plant
species and supporting habitats. This motion was also made
pursuant to a request by the U.S. Fish and Wildlife Service and
was subsequently defeated.
The MCC then set aside the Change in Zoning bill and
considered the Project District bill. After some discussion but
without any new proposed amendments, the MCC voted to pass the
Project District bill on second and final reading. The MCC then
returned to the Change in Zoning bill, and after final concluding
remarks, voted to pass the bill on second and final reading.
Thus, both bills were passed without any changes being made
between the first reading on February 14, 2008 and the second and
final reading.
The meeting was finally adjourned at 12:49 a.m. on
March 19, 2008.
The Mayor of Maui County signed the Wailea 670 bills
into law on April 8, 2008.
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B. Circuit court proceedings continued
Petitioners’ Motion for Preliminary Injunction was
heard on April 8, 14, 21, and 23, 2008. On April 23, 2008, the
circuit court granted the motion, preliminarily enjoining the MCC
“from engaging in any conduct that enforces, implements or
otherwise treats as validly enacted” the Wailea 670 bills,
“purporting to have passed first reading on February 14, 2008,
purporting to have passed second reading on March 18, 2008, and
purporting to have been signed into law on April 8, 2008, until
further order of this Court.”
On May 28, 2008, the circuit court granted Honua#ula’s
motion to intervene in the action.
On October 17, 2008, the circuit court held a hearing
on the parties’ cross-motions for summary judgment. The parties
agreed that there were no disputes as to any material facts and
agreed to submit the matter to the circuit court for a final
decision on the merits based on a stipulated joint record. The
cross-motions for summary judgment were withdrawn and the court
set November 17, 2008 for trial on the merits.
On November 17, the court granted judgment in favor of
Respondents MCC, County of Maui, and Honua#ula and against
Petitioners as to all claims and vacated its order granting
Petitioners’ Motion for Preliminary Injunction.
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The circuit court entered its Findings of Fact,
Conclusions of Law and Order on December 15, 2008. The circuit
court concluded as a matter of law that the agenda for the
October 18, 2007 LUC meeting “provided adequate notification of
the item to be considered at the meeting.”
The court denied Petitioners’ contention that HRS § 92-
7(d), which provides that “[i]tems of reasonably major importance
not decided at a scheduled meeting shall be considered only at a
meeting continued to a reasonable day and time,” only allows for
a single continuance of a meeting. The court relied on HRS § 1-
17, which provides that words “in the singular or plural number
signify both the singular and plural,” to conclude that the term
“day” in HRS § 92-7(d) means both “day” and “days.”
The court also entered a conclusion of law that the
Hawai#i Attorney General had “opined that recesses until a
subsequent day are permitted if a board or commission cannot
complete its business on the date that the meeting was publicly
noticed . . . provided that it announces at the publicly noticed
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meeting the date, place, and time of the continued meeting.”12
(quotation marks omitted).
Additionally, the circuit court entered a conclusion of
law that the legislative history of the Sunshine Law revealed
that the legislature “expressly rejected” a “provision that would
have precluded items of major importance from being continued to
a later date[.]” The court concluded there was no indication
“that the legislature intended to place a limit on the number of
times a meeting could be continued.”
The court concluded, “The continuation of meetings
which remain open to the public, following the public’s
opportunity to testify, does not conflict with the stated
policies embodied in HRS §§ 92-1(2) and 92-1(3)[.]”
12
Relatedly, the court cited the October 14, 2008 declaration of
David Raatz, a legislative attorney for the Office of Council Services, which
was attached as an exhibit to the MCC and County of Maui’s reply memorandum in
support of their motion for summary judgment. Mr. Raatz stated in his
declaration that in 2004, he contacted the Office of Information Practices
(OIP) regarding a meeting before the Planning and Land Use Committee of the
MCC, which he anticipated would “take several days to be completed.” Prior to
the agenda for the meeting being posted, Mr. Raatz contacted an OIP staff
attorney and provided her with a copy of the draft agenda. The draft agenda
specifically noted that it might be necessary to continue the meeting and
provided the date, time and location of the anticipated continued meetings.
The staff attorney responded by email, stating, “We think it suffices to
reconvene the meeting, so long as the date, time and place of the continued
meeting are also announced at the time the meeting is adjourned subject to the
announced continuation.” The attorney did not cite authority for this
statement.
After eight continuations of the noticed meeting, Mr. Raatz again
contacted the OIP to discuss the committee’s ability to continue reconvening
the meeting. He was advised that it was appropriate to continue meeting
“provided that no individual recess lasts more than five days” and provided
the “recesses did not appear to be based on any inappropriate purpose, such as
to ‘dodge’ issues or decrease openness in government.”
According to Mr. Raatz, it was his understanding that “the Office
of Council Services has continued to follow the advice given by OIP[.]”
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Considering the above, the court concluded that the
“LUC was permitted by law to recess and reconvene the October 18,
2007 meeting on 12 successive days[.]” The court reasoned that
HRS § 92-7(d) permitted the LUC to continue the decision-making
portion of its October 18 meeting to “reasonable days and times”
and that because the October 18 meeting was recessed and
reconvened rather than adjourned, “it was not necessary for a new
Agenda to be posted for each of the successive dates[.]”
In regard to Petitioners’ argument that the recessed
and reconvened meetings violated the public oral testimony
requirement of the Sunshine Law, the circuit court concluded that
oral testimony was not required to be taken once the LUC’s
decision-making deliberations began. The court noted that
“Plaintiffs’ interpretation of the Sunshine Law, which would
require hearing public testimony at every reconvened meeting,
could create logistical problems that might adversely impact the
legislative process.” Based on these conclusions, the circuit
court held that the recessing and reconvening of the October 18,
2007 LUC meeting did not violate the Sunshine Law. The court
applied the same reasoning to the recessing and reconvening of
the February 8, 2008 MCC meeting, finding no violation of the
Sunshine Law.
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Regarding the MCC’s memoranda on proposed amendments,
the circuit court entered the following relevant findings of
fact:
93. These memoranda were prepared as a matter of
courtesy to the other Council members.
94. There is no evidence that there were any
discussions or interactions of any sort, outside of the
public meeting, by and between any Council members about the
memoranda . . . .
95. None of the memoranda in question attempted to
secure a Council Member’s commitment to vote for the
proposed amendments or reconsideration of conditions.
96. There is no evidence that any Council member
attempted to have other Council members commit to vote for
any proposed amendments or reconsideration of conditions.
(Citations omitted). Based on these findings, the circuit court
concluded that Petitioners “failed to provide authority that the
circulation of written proposed amendments under these
circumstances violates the Sunshine Law.” The court further
concluded that Petitioners’ reliance on Right to Know Comm. v.
City Council, City & Cnty. of Honolulu, 117 Hawai#i 1, 175 P.3d
111 (App. 2007) to demonstrate that the memoranda violated the
Sunshine Law was misplaced, given that Right to Know involved a
written resolution introduced jointly by a group of council
members. The circuit court concluded that Right to Know did not
prohibit an individual council member from “putting amendments in
writing so that other members might more easily comprehend and
consider” them.
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The court also concluded that the memoranda “contain no
request for a vote outside of the meeting.”
The court concluded on this issue:
59. Hawai#i’s Sunshine Law does not prohibit a single
board member from memorializing in writing proposed floor
amendments and other proposals that a board member intends
to raise at a public board meeting, and providing that to
other board members in advance of the public meeting.
Whether this represents sound council policy or operating
procedure is a question for the public and council to
determine, provided the actions of the legislative body do
not conflict with applicable law.
60. The Memoranda submitted by some Council members
outlining amendments they intended to propose at the public
hearing of the February 8, 2008 meeting were not efforts by
Council members to get other Council members to commit to
vote for the Amendments to be proposed.
61. The Memoranda . . . were not “discussions,
communications or interactions” between Council members
prohibited by HRS Chapter 92, Part I.
(Emphasis added).
The circuit court entered its Final Judgment in favor
of Respondents and against Petitioners on January 22, 2009.
II. APPEAL
A.
On appeal to the ICA, Petitioners claimed that the
circuit court “erred in concluding that the recessing and
reconvening” of the October 18, 2007 and February 8, 2008
meetings “without providing additional notice and opportunity to
testify” did not violate the Sunshine Law. Additionally,
Petitioners claimed that the circuit court “erred in concluding
that the circulation of memoranda among and between the entire
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membership outside a duly noticed meeting” did not violate the
Sunshine Law.13
In support of their first point, Petitioners argued
that HRS § 92-7(d) permits a single continuance to a “reasonable
day and time.” Thus, Petitioners argued that the LUC and MCC’s
“marathon recessing” violated the Sunshine Law due to the failure
to post new agendas and to accept public oral testimony at the
meetings held beyond a single continuance. Relatedly,
Petitioners argued that the “broad agenda item description” used
by the LUC for its October 18, 2007 meeting “could not have
possibly notified the public that [the LUC] would be considering
twelve meetings worth of information” and making decisions
regarding “twenty eight conditions” to the Wailea 670 bills.
In regard to the written communications, Petitioners
argued that the Sunshine Law generally prohibits discussion
regarding board business between board members outside of a
properly noticed meeting, except as provided in HRS § 92-2.5.
Petitioners argued that the written memoranda in this case did
not fall within the list of permitted interactions provided for
in HRS § 92-2.5 because the communications were distributed to
the entire board, circumvented the Sunshine Law’s open meetings
13
Petitioners also argued that the circuit court erred in concluding
that the MCC’s reconsideration of amendments to the Wailea 670 bills did not
violate the Sunshine Law. The ICA held that the circuit court did not err in
this regard. Kanahele v. Maui Cnty. Council, No. 29649, 2012 WL 2974909, at
*3-4 (Jun. 29, 2012) (SDO). Inasmuch as the Application does not raise this
issue, it is not further addressed.
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requirement, and violated the prohibition against seeking or
obtaining the position or vote of other board members outside of
a duly noticed meeting.
B.
The ICA affirmed the circuit court’s January 22, 2009
Final Judgment. Kanahele, 2012 WL 2974909, at *4. Chief Judge
Nakamura and Judge Fujise concurred in the majority opinion,
while Judge Ginoza wrote a separate concurring opinion.
1.
The ICA majority rejected Petitioners’ contention that
the recessed meetings violated the Sunshine Law. The majority
found that Petitioners’ arguments that the recessed meetings
violated the agenda and public oral testimony requirements of the
Sunshine Law “rest on [the] contention that the recessed LUC and
MCC meetings did not constitute proper continuations under the
Sunshine Law.” Id. at *2. The majority rejected this
contention, finding that “HRS § 92-7(d) specifically allows for
the continuation of meetings by a public ‘board.’ It states that
agenda items of ‘reasonably major importance not decided at a
scheduled meeting shall be considered only at a meeting continued
to a reasonable time and day’.” Id. (footnote and citation
omitted). The majority found that Petitioners’ argument that the
statute limits boards to a single continuance was not supported
by legal authority, citing HRS § 1-17 as well as Nobriga v.
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Raybestos-Manhattan, Inc., 67 Haw. 157, 163, 683 P.2d 389, 394
(1984), providing that “[t]he use of words in a statute
signifying the singular is . . . not conclusive.” 2012 WL
2974909, at *2.
The majority found that even assuming arguendo that the
language of HRS § 92-7(d) was ambiguous, the legislative history
did not support Petitioners’ contention that boards are limited
to a single continuance, as the legislature had expressly
rejected a proposal to prohibit continuing meetings for items of
reasonably major importance. Id. Therefore, the majority
concluded that the continued LUC and MCC meetings did not violate
the Sunshine Law. Id.
As to Petitioners’ contention that the written
memoranda violated the Sunshine Law, the majority noted that
Petitioners did not challenge the circuit court’s finding “that
there was no evidence of any discussion or interaction between
the members, outside of a public meeting, regarding the
memoranda.” Id. The majority further found that “[n]one of the
memoranda solicited a vote or a commitment on the subject matters
in the memoranda,” and each memoranda indicated that a copy was
sent to the County Clerk’s office as required by the Maui County
Charter. Id. The ICA also found that “a review of the ‘minutes’
of the February 8, 2008 meeting, reveals that the various authors
of the memoranda referred, sometimes extensively, to the same in
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their deliberations at the public meeting. At a minimum, the
motions proposed in the memoranda were repeated in the public
hearing.” Id.
The majority concluded that the Sunshine Law’s
underlying policy, that “provisions requiring open meetings shall
be liberally construed and provisions for exceptions to open
meetings shall be strictly construed,” did not prohibit the
challenged distribution of memoranda. Id. at *3. According to
the majority, HRS § 92-2.5 “allows two board members to privately
discuss official board matters in two-way, face-to-face
communications, as long as the members do not seek voting
commitments.” Id. (footnote omitted). The majority reasoned,
“As this type of two-way communication is permitted under the
statute, one-way communication that also does not involve
securing commitments or votes of other members and is treated and
disclosed to the public as was done here appears likewise to be
within the scope of permissible communications.” Id. (emphases
added).
Relatedly, the majority found no support for
Petitioners’ interpretation of HRS § 92-2.5 to mean that
“communications, interactions, discussions, investigations and
presentations not described in section 2.5 are meetings for
purposes of the statute.” Id. (emphasis in original). According
to the majority, Petitioners did not argue that the memoranda
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were distributed for the purpose of evading the Sunshine Law.
Id. Petitioners also did not allege that they were prevented
from viewing or commenting on the memoranda. Id. The majority
concluded that based on the record, it could not say the circuit
court erred in holding that the memoranda were not prohibited
under the Sunshine Law. Id. The majority further held, “[W]e
are convinced, based on a review of this record, that the
distribution of these memoranda did not violate the purpose or
the spirit of the Sunshine Law.” Id.
2.
The concurrence disagreed with the majority’s
conclusion that the written memoranda were permitted by the
Sunshine Law.14 Kanahele, 2012 WL 2974909, at *4 (Ginoza, J.,
concurring). The concurrence concluded that based on a plain
reading of the Sunshine Law and “particularly given the broad
declaration of policy and intent articulated in HRS § 92-1,” the
memoranda distributed among the MCC members “outside of the
public meetings do not comport with Hawaii’s Sunshine Law because
the memoranda were part of the council’s deliberation toward
their decision on first reading of the Wailea 670 Bills.” Id. at
*5.
The concurrence found that a review of the fourteen
memoranda prepared and distributed among the MCC members in
14
The concurrence agreed with the majority on the issue of whether
the recessed meetings violated the Sunshine Law.
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relation to the meetings held on February 8, 11 and 14, 2008,
“establishes that each provided substantive explanations or
justifications in support of the proposed amendments or proposed
reconsideration, sometimes referring to testimony that had been
received in prior meetings as a reason for the proposals
contained in the memorandum.” Id. Although the memoranda were
“treated in a public fashion in that they were copied to the
County Clerk and openly referred to in the council meetings,”
there was also “no evidence that the memoranda were disseminated
to the public or made available to the public at the meetings.”
Id. Thus, the substantive memoranda were part of the MCC’s
deliberations toward their decision on first reading of the
Wailea 670 bills and did not comport with the Sunshine Law. Id.
The concurrence also disagreed with the majority on the
interpretation of the “permitted interactions” provision of HRS §
92-2.5. Id. at *5-6. The concurrence explained that pursuant to
HRS § 92-3, all board meetings must be open to the public. Id.
at *5. Although HRS § 92-2 only defines a “meeting” as the
“convening of a board” for certain purposes, when the legislature
adopted HRS § 92-2.5, entitled “Permitted interactions of
members,” the legislature explained that the purpose of the act
was to “specify those instances and occasions in which members of
a board may discuss certain board matters.” Id. at *5-6 (quoting
1996 Haw. Sess. Laws Act 267, § 1 at 628). Therefore, the
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concurrence found, “It thus appears that the legislature has
specified the permitted interactions of board members ‘outside
the realm of a public meeting.’” Id. at *6.
Even assuming that one-way memoranda constituted
permitted interactions, the concurrence noted that “most of the
permitted interactions under HRS § 92-2.5 preclude interaction
between a quorum of the board.” Id. In this case, the memoranda
were distributed to all MCC members outside of a public meeting.
Id. In addition, the concurrence emphasized that HRS § 92-5(b)
provides that no “permitted interaction . . . shall be used to
circumvent the spirit or requirements of this part to make a
decision or to deliberate toward a decision upon a matter over
which the board has supervision, control, jurisdiction, or
advisory power.” Id. (emphasis in original) (quotation marks
omitted).
After concluding that the memoranda violated the
Sunshine Law, the concurrence analyzed whether the violation
should result in voiding the MCC’s actions pursuant to HRS § 92-
11, which provides that “[a]ny final action taken in violation of
sections 92-3 and 92-7 may be voidable upon proof of violation.”
The concurrence concluded that the challenged memoranda should
not result in voiding the MCC’s actions, reasoning first that the
challenged memoranda did not relate to a “final action.” Id. at
*6. Although the Sunshine Law does not define the term “final
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action,” the concurrence found that “its plain meaning . . .
appears to mean the final act required to carry out the board’s
authority on a matter.” Id. The concurrence explained that
because “the challenged memoranda were related to the council’s
first reading of the Wailea 670 Bills, [and] there was a
subsequent second reading and passage of the bills on March 18,
2008,” the memoranda did not relate to a “final action” taken in
violation of HRS § 92-3. Id.
Second, the concurrence found that even assuming that a
“final action” was taken in relation to the challenged memoranda,
HRS § 92-11 provides that the board action “may” be voidable.
Id. The concurrence reasoned that in this case, “although the
memoranda did not technically comply with [the Sunshine Law],
they were provided to the County Clerk, . . . and moreover, the
memoranda were openly discussed at the council meetings.
Additionally, [Petitioners] have made no argument that they were
affected in any way or prejudiced by the memoranda that they
challenge.” Id. at *7. Therefore, the concurrence concluded
that “although the use of the challenged memoranda was a
technical violation of [the Sunshine Law], voiding the actions
taken by the [MCC] is not warranted under HRS § 92-11.” Id.
III. APPLICATION FOR WRIT OF CERTIORARI
In their Application to this court, Petitioners argue
that the ICA erred in interpreting the Sunshine Law to permit a
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board or commission “to conduct a series of meetings to
deliberate on a matter within its jurisdiction without having to
comply with the notice and public oral testimony requirements” of
the Sunshine Law. Additionally, Petitioners maintain that the
ICA erred in interpreting the Sunshine Law to permit board
members “to circulate extensive written memoranda presenting and
advocating for proposed action to the entire membership of the
board or commission out of a public meeting.”
IV. DISCUSSION
A.
At issue in resolving Petitioners’ first claim is
whether the ICA erred in holding that the recessing and
reconvening of the October 18, 2007 LUC meeting and the February
8, 2008 MCC meeting comported with the notice and public oral
testimony requirements of the Sunshine Law.
As the ICA found, this claim rests on Petitioners’
contention that HRS § 92-7(d) limits boards to a single
continuance of a noticed meeting. Based on this premise,
Petitioners have argued that for any meetings held by the LUC or
MCC beyond a single continuance, the board was required to post a
new agenda and to accept public oral testimony.
1.
“The interpretation of a statute is a question of law
reviewable de novo.” Franks v. City & Cnty. of Honolulu, 74 Haw.
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328, 334, 843 P.2d 668, 671 (1993). We apply the following
standard in interpreting statutes:
When construing a statute, our foremost obligation is to
ascertain and give effect to the intention of the
legislature which is to be obtained primarily from the
language contained in the statute itself. We must read
statutory language in the context of the entire statute and
construe it in a manner consistent with its purpose. When
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute an
ambiguity exists. If the statutory language is ambiguous or
doubt exists as to its meaning, courts may take legislative
history into consideration in construing a statute.
Id. at 334-35, 843 P.2d at 671-72 (quotation marks and citations
omitted) (emphases added). “If we determine, based on the
foregoing rules of statutory construction, that the legislature
has unambiguously spoken on the matter in question, then our
inquiry ends.” In re Water Use Permit Applications, 94 Hawai#i
97, 144, 9 P.3d 409, 456 (2000).
However, when an ambiguity exists, we consider
interpretations of the statute made by the administrative agency
responsible for enforcing the statute and “follow the same,
unless the construction is palpably erroneous”:
When the legislative intent is less than clear, however,
this court will observe the well established rule of
statutory construction that, where an administrative agency
is charged with the responsibility of carrying out the
mandate of a statute which contains words of broad and
indefinite meaning, courts accord persuasive weight to
administrative construction and follow the same, unless the
construction is palpably erroneous.
Id. (quotation marks omitted) (emphases added). See Vail v.
Emps.’ Ret. Sys. of the State of Haw., 75 Haw. 42, 66, 856 P.2d
1227, 1240 (1993). “An agency’s interpretation of a statute is
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palpably erroneous when it is inconsistent with the legislative
intent underlying the statute.” Gillan v. Gov’t Emps. Ins. Co.,
119 Hawai#i 109, 119, 194 P.3d 1071, 1081 (2008).
Thus, judicial deference to an agency’s interpretation
of ambiguous statutory language “is constrained by our obligation
to honor the clear meaning of a statute, as revealed by its
language, purpose, and history.” Morgan v. Planning Dep’t, Cnty.
of Kaua#i, 104 Hawai#i 173, 180, 86 P.3d 982, 989 (2004)
(quotation marks omitted).
2.
Accordingly, we first look to the language of the
Sunshine Law to determine whether a board is limited to a single
continuance under HRS § 92-7(d).
HRS § 92-3 (1993) contains among its provisions the
public testimony requirement of the Sunshine Law. § 92-3
mandates that “[e]very meeting of all boards shall be open to the
public and all persons shall be permitted to attend any meeting,”
and that “boards shall also afford all interested persons an
opportunity to present oral testimony on any agenda item.”15 The
legislature gave boards a certain amount of discretion over the
15
A “board” is defined as “any agency, board, commission, authority,
or committee of the State or its political subdivisions which is created by
constitution, statute, rule, or executive order, to have supervision, control,
jurisdiction or advisory power over specific matters and which is required to
conduct meetings and to take official actions.” HRS § 92-2 (1993). There is
no dispute that the MCC and LUC fall within this statutory definition of a
“board.”
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oral testimony requirement, stating that “boards may provide for
reasonable administration of oral testimony by rule.” Id.
HRS § 92-7 constitutes the notice provision of the
Sunshine Law. Subsection (a) requires that “[t]he board shall
give written public notice of any regular, special, or
rescheduled meeting . . . . The notice shall include an agenda
which lists all of the items to be considered at the forthcoming
meeting, [and] the date, time, and place of the meeting[.]” HRS
§ 92-7(a) (Supp. 2008).16 Subsection (b) requires the board to
16
In its current form, HRS § 92-7 (2012) provides:
(a) The board shall give written public notice of any
regular, special, or rescheduled meeting, or any executive
meeting when anticipated in advance. The notice shall
include an agenda which lists all of the items to be
considered at the forthcoming meeting, the date, time, and
place of the meeting, and in the case of an executive
meeting the purpose shall be stated. The means specified by
this section shall be the only means required for giving
notice under this part notwithstanding any law to the
contrary.
(b) The board shall file the notice in the office of the
lieutenant governor or the appropriate county clerk's
office, and in the board's office for public inspection, at
least six calendar days before the meeting. The notice shall
also be posted at the site of the meeting whenever feasible.
(c) If the written public notice is filed in the office of
the lieutenant governor or the appropriate county clerk's
office less than six calendar days before the meeting, the
lieutenant governor or the appropriate county clerk shall
immediately notify the chairperson of the board, or the
director of the department within which the board is
established or placed, of the tardy filing of the meeting
notice. The meeting shall be canceled as a matter of law,
the chairperson or the director shall ensure that a notice
canceling the meeting is posted at the place of the meeting,
and no meeting shall be held.
(d) No board shall change the agenda, once filed, by adding
items thereto without a two-thirds recorded vote of all
members to which the board is entitled; provided that no
item shall be added to the agenda if it is of reasonably
(continued...)
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file the notice in the appropriate office “at least six calendar
days before the meeting,” and provides that “[t]he notice shall
also be posted at the site of the meeting whenever feasible.”
HRS § 92-7(b) (Supp. 2008).
HRS § 92-7(d) (Supp. 2008) provides that “[i]tems of
reasonably major importance not decided at a scheduled meeting
shall be considered only at a meeting continued to a reasonable
day and time.” However, subsection (d) does not specify how it
relates to the notice provisions under subsections (a) and (b);
that is, the statute does not state whether a meeting continued
under subsection (d) triggers the requirement to post an agenda
within six days of the meeting or requires the board to accept
public oral testimony at the continued meeting. HRS § 92-7(d)
does not specify any particular process for the board to follow
in continuing a meeting to a reasonable day and time.
HRS § 92-7(d) also does not specify whether boards are
limited to a single continuance, providing only that meetings may
(...continued)
major importance and action thereon by the board will affect
a significant number of persons. 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.
(e) The board shall maintain a list of names and addresses
of persons who request notification of meetings and shall
mail a copy of the notice to such persons at their last
recorded address no later than the time the agenda is filed
under subsection (b).
(Emphases added).
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be “continued to a reasonable day and time.” Although the
circuit court and ICA relied on the general rule stated in HRS §
1-17 (that words in the “singular or plural number signify both
the singular and plural number”) to find that the term “day” in
HRS § 92-7(d) should be construed to permit multiple continuances
of meetings, HRS § 1-17 is not dispositive. “This court has
interpreted statutes using the statutory presumption in HRS § 1-
17 only after reviewing the legislative history and context in
which a statute was passed to determine whether the legislature
intended to signify both the singular and plural forms of a
word.” AlohaCare v. Ito, 126 Hawai#i 326, 347, 271 P.3d 621, 642
(2012).
Thus, we next consider the administrative construction
and legislative history of the Sunshine Law.
The OIP is the agency charged with the responsibility
of administering the Sunshine Law.17 HRS § 92-1.5 (2012). As
such, its opinions are entitled to deference so long as they are
consistent with the legislative intent of the statute and are not
palpably erroneous. See HRS § 92-12(d) (2012) (“Opinions and
rulings of the [OIP] shall be admissible in an action brought
under this part and shall be considered as precedent unless found
to be palpably erroneous.”); Gillan v. Gov’t Emps. Ins. Co., 119
17
HRS § 92-1.5 was adopted in 1998. 1998 Haw. Sess. Laws Act 137, §
1 at 514. Prior to its adoption, the Sunshine Law was enforced by the
attorney general but there was no single government agency “responsible for
overseeing compliance of open meeting requirements[.]” Id.
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Hawai#i 109, 119, 194 P.3d 1071, 1081 (2008) (agency’s
interpretation is palpably erroneous when inconsistent with
underlying legislative intent); Right to Know Comm. v. City
Council, City & Cnty. of Honolulu, 117 Hawai#i 1, 13, 175 P.3d
111, 123 (App. 2007).
In a 2001 opinion primarily interpreting the public
testimony requirement of HRS § 92-3, the OIP stated that a board
“may decide on proposed rule revisions after the public hearing
without the duty to accept further public testimony during its
decisionmaking simply by continuing the decisionmaking portion of
the meeting to a reasonable day and time as provided by section
92-7(d)[.]” OIP Op. Ltr. No. 01-06, 2001 WL 1876821, at *5 (Dec.
31, 2001). The OIP explained, “[a]s a practical matter, for a
board to perform its designated role by deliberating toward
decisions, it must be able to conclude the public testimony
portion of an agenda item once it has afforded all interested
persons an opportunity to present oral testimony[.]” Id. at *6
(quotation marks and brackets omitted).
Although the specific procedure for continuing a
meeting under HRS § 92-7(d) was not one of the issues presented
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to the OIP,18 the OIP recommended that in “continu[ing] the
decisionmaking portion of the hearing/meeting,” a “board should”:
(1) At the meeting that includes the public hearing, agree
on and announce the continuation of the meeting to an
announced and reasonable date, time, and place;
(2) Adjourn the meeting subject to the announced
continuation; and
(3) Reconvene the meeting for decisionmaking on the
announced date and at the announced time and place.
Id. at *8. The OIP found in that case that the city Liquor
Commission held separate meetings with separate notices and
agendas, rather than a single noticed meeting that was continued
under HRS § 92-7(d). OIP Op. Ltr. No. 01-06, 2001 WL 1876821, at
*5. Thus, the Liquor Commission violated the Sunshine Law by
refusing to accept public testimony at the second meeting. Id.The OIP explained, however, that the board’s ability to
continue its consideration of agenda items is subject to the
following limitations:
First, to take up any new matter of reasonably major
importance and affecting a significant number of persons, a
board would need to publish a new agenda and thus call a new
meeting.[19] Second, a board may only continue consideration
18
The issues presented were: 1) whether the city Liquor Commission
properly noticed its decision-making on proposed rule revisions, where the
posted agenda failed to notify the public that the Liquor Commission would be
deliberating or deciding on certain proposed rule revisions previously
considered; 2) whether HRS § 91-3 (Supp. 2000) and HRS § 92-3 conflict; and 3)
whether the Liquor Commission violated the Sunshine Law by prohibiting public
testimony on an agenda item, where the Liquor Commission held separate
meetings with separate notices and agendas. OIP Op. Ltr. No. 01-06, 2001 WL
1876821 at *1.
19
“Determination of whether an item ‘is of reasonably major
importance’ and when board action thereon will ‘affect a significant number of
persons’ is fact-specific and must be made on a case-by-case basis.” OIP Op.
(continued...)
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of an agenda item without calling a new meeting when that
continuation is reasonable, and a continuation that impaired
to any significant degree the public’s ability to testify on
an ongoing issue would likely not be reasonable.
Id. at *5 n.6 (emphasis added) (citation omitted). The OIP did
not state or suggest that a board is limited to a single
continuance when reconvening a meeting under HRS § 92-7(d).
In addition, the OIP specifically declined to decide
what would constitute a “reasonable continuation date for the
original meeting,” as the Liquor Commission had not in fact
reconvened the original meeting. Id. at *5 n.5. The OIP did not
indicate what would be “reasonable” in the context of a series of
continued meetings, or suggest that a meeting continued pursuant
to HRS § 92-7(d) must be reconvened within five days.
The OIP’s interpretation of the Sunshine Law, insofar
as it permits more than a single continuance without requiring a
new agenda and without requiring additional public testimony to
be accepted at every continued meeting, is supported by the
legislative history of the statute.
The Sunshine Law provision for continuing meetings to a
reasonable date and time was adopted by the legislature in 1985.
(...continued)
Ltr. No. 06-05, 2006 WL 2103475, at *2 (Jul. 19, 2006). “As a general rule, a
proposed bill, being a legislative act through which the Council seeks to
enact county law, must be viewed as an item of ‘reasonably major importance’
that affects a ‘significant number of persons.’” OIP Op. Ltr. No. 07-02, 2007
WL 550326, at *4 (Feb. 2, 2007). See also Jon M. Van Dyke, Hawaii's Sunshine
Law Compliance Criteria, 26 U. Haw. L. Rev. 21, 27 (2003) (“A matter is of
reasonably major importance if it is of interest to any sector of the
community, and an agenda item would affect a significant number of persons if
it would concern more than a handful of individuals.”).
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1985 Haw. Sess. Laws Act 278, § 4 at 592-93. The Senate’s
original bill proposed that “[i]tems of reasonably major
importance shall not be considered at a meeting continued to a
later date.” S.B. No. 1413, 13th Leg., Reg. Sess. (1985). The
original bill also proposed amending HRS § 92-3 to require boards
to “afford all interested persons an opportunity to submit data,
views, or arguments, orally or in writing, on any agenda item.”
Id.
The House amended the bill by deleting the proposed
amendment to prohibit items of reasonably major importance from
being considered at a continued meeting. H. Stand. Comm. Rep.
No. 889, in 1985 House Journal, at 1425. The House Judiciary
Committee acknowledged that “there have been problems where
important issues have been continued and advance notice of
subsequent meetings has not been sufficient,” but reasoned that
the deletion was appropriate because it was “unreasonable” to
completely deny boards the ability to continue meetings:
Your Committee further believes that it is unreasonable to
require that items of “reasonably major importance” must be
acted upon at a meeting. There are situations that arise
which require a meeting to be continued such as when
additional information is required, many people wish to
testify on an agenda item, a board lacks a majority vote on
a decision and it would be better to recess and consider the
matter at a later date, or an unresolved item could delay
ending with a meeting.
Id.
With respect to the oral testimony requirement, the
House amended the bill to provide that boards must afford all
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interested persons an opportunity to submit testimony in writing,
“provided, further, at the discretion of the board, interested
persons may be allowed to present oral testimony on any agenda
item.” S.B. No. 1413, H.D. 1, 13th Leg., Reg. Sess. (1985)
(emphasis added). The House Judiciary Committee explained that
it “wanted to ensure that interested persons be allowed to
present their views but it felt that there had to be some balance
between access to the boards and the boards [sic] ability to
conduct business.” H. Stand. Comm. Rep. No. 889, in 1985 House
Journal, at 1424.
The conference committee then amended the bill to adopt
the current language of § 92-7(d), requiring “a board which is
unable to complete its agenda to continue consideration of items
of reasonably major importance to a reasonable day and time.”
Conf. Comm. Rep. No. 36, in 1985 Senate Journal, at 867. The
conference committee also adopted the current language of § 92-3,
stating that “boards may provide for reasonable administration of
oral testimony by rule.” S.B. No. 1413, C.D. 1, 13th Leg., Reg.
Sess. (1985); Conf. Comm. Rep. No. 36, in 1985 Senate Journal, at
867.
Thus, the legislative history of the Sunshine Law
reflects a concern for balancing public access to board meetings
with the board’s continued ability to effectively conduct its
business. This concern is exemplified in the public testimony
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provision, which expressly grants boards discretion to reasonably
administer the oral testimony requirement. The same concern also
appears to support the continued meetings provision, as the House
report considered that it was unreasonable to require boards to
decide on matters of reasonably major importance at a single
meeting. There is no suggestion that the legislature intended
for boards to be limited to a single continuance.
Accordingly, based on the OIP’s construction of the
Sunshine Law as well as the legislative history of the statute,
we conclude that the LUC and MCC did not violate the Sunshine Law
by continuing and reconvening the October 18, 2007 meeting and
February 8, 2008 meeting beyond a single continuance. However,
while the legislature did not expressly limit the number of
continuances permissible under HRS § 92-7(d), the legislative
history and text of the Sunshine Law demonstrates that boards are
constrained at all times by the spirit and purpose of the
Sunshine Law, as stated in HRS § 92-1.
A board may consider various procedural devices in the
interest of ensuring that meetings are continued in a manner that
complies with the spirit and purpose of the law, particularly
when serially recessing meetings on an issue of great
significance to the community.20 For example, if a board is
cognizant that a single meeting will be insufficient for the
20
The board may only continue meetings under HRS § 92-7(d) with
respect to “[i]tems of reasonably major importance.” See supra note 19.
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consideration of an agenda item and anticipates continuances, a
board may include the dates of continuances in the agenda posted
pursuant to HRS § 92-7(a). The record in this case indicates
that MCC committees have previously included anticipated dates
and times of continuances on its posted meeting agenda. See
supra note 12. A board is also not required to serially recess
meetings on an agenda item of reasonably major importance.
Rather, a board may decide to hold separate meetings, with
separate agendas, on different aspects of the same bill. This
would be particularly beneficial for members of the public who
are only interested in certain facets of the project that may be
divisible, such as the impact of the project on the environment,
housing, or traffic. In this manner, the public would be able to
better understand what the board intends to consider at each
meeting. Cf. OIP Op. Ltr. No. 07-02, 2007 WL 550326, at *2 (Feb.
2, 2007) (HRS § 92-7(a) requires boards to sufficiently describe
agenda items “to allow a member of the public to understand what
the board intends to consider at the meeting and to decide
whether to attend and to participate through oral or written
testimony”). Such a practice would be consistent with the
purpose of the notice and agenda provisions of the Sunshine Law,
“to give the public the opportunity to exercise its right to know
and to scrutinize and participate in the formation and conduct of
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public policy.” OIP Op. Ltr. No. 06-05, 2006 WL 2103475, at *4
(Jul. 19, 2006).
A board may also consider permitting periodic oral
testimony by members of the public, as issues develop during the
deliberation process.21 In this case, the LUC accepted public
testimony on the Wailea 670 bills at the October 18, 2007
meeting. Each person was given four minutes to speak. The LUC
then proceeded to conduct twelve continued meetings, encompassing
“over 45 hours of deliberation.” No further oral public
testimony was received by the LUC.
Periodically re-opening the public oral testimony
portion of the meeting in such cases, where a meeting is serially
recessed and the board engages in extensive deliberation on the
matter, would be consistent with the purpose of the public
testimony requirement, to “ensure that interested persons be
allowed to present their views[.]” H. Stand. Comm. Rep. No. 889,
in 1985 House Journal, at 1424.
Periodic testimony may be especially appropriate in
situations where a controversial or significant issue that was
not anticipated develops during the board’s discussions and
decision-making. Relatedly, a board could consider accepting
periodic oral testimony from members of the public in the
21
A board has discretion to reasonably administer oral testimony, by
subject matter or time constraints, as appropriate given the circumstances.
See HRS § 92-3.
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interest of fairness and accuracy of information, where the board
has solicited or received comments from other interested parties
during the deliberation process.22
Such procedural measures maximize the public’s ability
to observe and participate in the government processes. Thus, a
board should consider implementing such devices to ensure that
the “formation and conduct of public policy” is “conducted as
openly as possible,” HRS § 92-1, particularly when the board has
before it a matter that requires multiple continuances and is of
great significance to the community. In any event, a board is at
all times constrained to give effect to the spirit and purpose of
the Sunshine Law.
3.
In this case, Petitioners argued that the LUC and MCC
were required to post a new agenda and to accept oral testimony
at each meeting beyond the first continuance. While we hold that
this is not a requirement of the Sunshine Law, nevertheless the
spirit and purpose of the Sunshine Law, as expressed in HRS § 92-
1, requires that meetings should be continued in a manner that
ensures open government and public participation.23 While the
22
At ten out of the twelve continued LUC meetings, Honua#ula’s
representative responded to questions posed by the board members regarding
matters under discussion.
23
We note that the record indicates that the MCC adheres to a
practice of reconvening continued meetings within five days. HRS § 92-7(d)
(continued...)
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legislature authorized meetings to be continued under HRS § 92-
7(d), the legislature provided no specific notice procedure for
such continuations. Moreover, in 2012, the legislature amended
HRS § 92-7(a) to add the following language: “The means specified
by this section shall be the only means required for giving
notice under this part notwithstanding any law to the contrary.”24
2012 Haw. Sess. Laws Act 177, § 2 at 177; see supra note 16.
(...continued)
(2012), see supra note 16, does not require a continued meeting to be held
within five days of the prior meeting. Nothing in the text or the legislative
history of the Sunshine Law indicates that the legislature intended to place
such a restriction on the continuation of meetings. Although the record
includes a declaration by an attorney for the Office of Council Services that
he was advised by an OIP staff attorney that no individual recess should last
for more than five days, no basis was provided for such a requirement and the
OIP has not made such a statement in a formal opinion.
Additionally, requiring a board to reconvene within five days may
have an adverse effect on public participation, by making it more difficult
for the public to attend a meeting on short notice, or by limiting board
members to inconvenient meeting times. In this case, the LUC members
scheduled meetings to meet the perceived five day limit, even though there
were days beyond the limit that members preferred to meet on. Compelling
board members to meet within a certain time frame also does not prevent
members from superficially meeting for a few minutes in order to simply extend
the continuation for another five days.
24
The original bill would have required written public notice for
emergency meetings when anticipated in advance. S.B. No. 2859, 26th Leg.,
Reg. Sess. (2012). The original bill also would have required boards, in
addition to filing the notice in the board’s office and at the site of the
meeting, to post the notice on a designated electronic calendar maintained on
a state or county website. Id. These additional notice requirements for
emergency meetings and for electronic filing were subsequently removed. S.
Stand. Comm. Rep. No. 2458, S.B. No. 2859, S.D. 1, 26th Leg., Reg. Sess.
(2012) (removing electronic notice requirement); H. Stand. Comm. Rep. No.
1151-12, in 2012 House Journal, at 1378-79 (deleting written notice
requirement for emergency meetings).
The language providing that “[t]he means specified by this section
shall be the only means required for giving notice under this part” was left
intact from the original bill. The House Committee on Finance stated that the
bill as amended “[c]larifies that the current statutory written public notice
requirement of any regular, special, or rescheduled meeting, or any executive
meeting when anticipated in advance is the only means required for providing
such notice.” H. Stand. Comm. Rep. No. 1589-12, in 2012 House Journal, at
1528.
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Neither a written public notice nor an oral announcement is
specifically required for continued meetings under HRS § 92-7(d).
HRS § 92-1 (2012), entitled “Declaration of policy and
intent,” declares that “it is the policy of this State that the
formation and conduct of public policy—the discussions,
deliberations, decisions, and action of governmental
agencies—shall be conducted as openly as possible.” (Emphases
added). In order to implement this policy, the legislature
declared, “(1) It is the intent of this part to protect the
people’s right to know; (2) The provisions requiring open
meetings shall be liberally construed; and (3) The provisions
providing for exceptions to the open meeting requirements shall
be strictly construed against closed meetings.” HRS § 92-1.
Importantly, HRS § 92-1 explains that “[i]n a
democracy, the people are vested with the ultimate decision-
making power. Governmental agencies exist to aid the people in
the formation and conduct of public policy.” The statute
continues, “Opening up the governmental processes to public
scrutiny and participation is the only viable and reasonable
method of protecting the public’s interest” in the formation and
conduct of public policy. (Emphasis added). This makes it clear
that the legislature intended for the Sunshine Law to prescribe a
certain process for “the formation and conduct of public policy”
that would reliably protect the public’s right to participate in
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their government. The Sunshine Law is essentially a procedural
guarantee to protect the public’s interest in government
decision-making.
The policies expressed in HRS § 92-1 are a direct
result of the legislature’s belief in the dangers of a secret
government and its attempt to protect the public from such a
government. When the Sunshine Law was adopted in 1975, the
legislature envisioned that the law would be a “stringent open
meeting bill that meets the demands and the concerns of the
general public regarding the decision-making process.” 1975
House Journal, at 778 (statement of Rep. Roehrig). The hope was
that “[g]overnment decision-making before the public will mean
that everyone will have equal opportunity to become involved in
the process.” Id. (statement of Rep. Ajifu). As Representative
Poepoe explained,
[O]n many occasions in the past, government decision-making
has always been a closed-door process, in which a relative
small number of people have been able to exert inordinate
influence on issues affecting all of Hawaii’s people.
We cannot and must not allow this to go on.
Democracy cannot survive for very long in darkness. There
is no room for secrecy in our form of government. The
people have the right to know what their public servants are
doing behind the closed doors.
. . . .
[The Sunshine Law] will accomplish several of our goals in
the area of government reform. It requires that government
meetings with few exceptions be open to the public, that
adequate notice be given, and that the minutes be made
readily available to the public.
Id. at 779 (emphasis added).
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Accordingly, when the legislature adopted the language
of HRS § 92-7(d), there was an underlying concern that permitting
meetings to be continued would discourage the public from
participating in the decision-making process. As noted, the
House Judiciary Committee, in deleting the original language that
would have prohibited the continuation of meetings, acknowledged
testimony that “there have been problems when important issues
have been continued and advance notice of subsequent meetings has
not been sufficient.” H. Stand. Comm. Rep. No. 889, in 1985
House Journal, at 1425. The deletion of the original language
was criticized by some legislators on this basis. Representative
Tam explained,
Sometimes, members of boards and commissions fail to make
accommodations for the working public. It is already
difficult enough for a working person with a family to
sacrifice the time and effort required to prepare a
testimony, gather support, and attend a public meeting.
When meetings are continued to a later date, people are
discouraged from attempting to participate in the process of
government decision making. The original bill would have
prevented a situation in which a board continues a meeting
to a later date in an attempt to avoid the presentation of
public sentiment.
1985 House Journal, at 562 (emphasis added).
Representative Ikeda also criticized the House’s
deletion, stating, “[i]nstead of attempting to work out any
problems it had with the particular phraseology used, the draft
simply deleted the entire clause. In addition, nothing has been
included to require that adequate public notice be given on any
deferred matter or decision.” Id. at 562-63.
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The legislature’s concern, then, with respect to the
Sunshine Law has always been that the public should have a
realistic, actual opportunity to participate in the board’s
processes rather than a theoretical “right” to participate in
name only. 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.” HRS § 92-
1. Requiring no notice for reconvened meetings would also appear
to be at odds with the placement of the continuation provision
within HRS § 92-7, which is entitled “Notice.”
Legislatures and courts in other jurisdictions have
employed various approaches to keep the public notified of
continued meetings.25 The LUC and MCC in this case, based on the
25
Some states have rejected the practice of continuing meetings
without providing the full notice required for all other meetings subject to
the open meetings law or do not differentiate continued or recessed meetings
from other meetings. See e.g., Fla. Stat. § 286.011(1) (West, Westlaw through
2012 Act 25) (“All meetings of any board or commission of any state agency or
authority or of any agency or authority of any county . . . are declared to be
public meetings open to the public at all times . . . . The board or
commission must provide reasonable notice of all such meetings.”); N.J. Stat.
Ann. § 10:4-8(d) (West, Westlaw through 1981 Act 176) (“‘Adequate notice’
means written advance notice of at least 48 hours, giving the time, date,
location and, to the extent known, the agenda of any regular, special or
rescheduled meting[.]”), § 10:4-9(a) (“no public body shall hold a meeting
unless adequate notice thereof has been provided to the public”); Dunn v.
Mayor & Council & Clerk of the Borough of Laurel Springs, 394 A.2d 145, 146
(N.J. Super. Ct. App. Div. 1978) (per curiam) (“We reject defendants’
contention that a meeting ‘recessed’ from one day to the next day may be
resumed on the following day without any new notice to the public. [. . .]
Where no emergency exists, adequate notice in conformity with the statute . .
. must be given.”); R.I. Gen. Laws § 42-46-6(b) (West, Westlaw through 2011
Act 151) (“Public bodies shall give supplemental written public notice of any
(continued...)
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(...continued)
meeting within a minimum of forty-eight (48) hours before the date.”).
The Florida Attorney General has explained that “[t]o allow a
meeting noticed for a specific date, time and location to be continued to a
future date, time and location without further proper notice, would
effectively open the future meeting only to those individuals who attended the
initial meeting.” Fla. Opp. Att’y Gen. 90-56, 1990 WL 509075, at *2 (Jul. 24,
1990). “This leaves to chance that interested members of the public who
happened not to be in attendance at the properly noticed meeting would receive
notice of the future meeting.” Id.Other states require written notice of a continued, adjourned or
reconvened meeting to be posted, generally at the place where the original
meeting was held, within a specified time frame following the original
meeting. See Cal. Gov’t Code § 54955.1 (West, Westlaw through 1965 Act 469)
(“Any hearing being held, or noticed or ordered to be held, by a legislative
body of a local agency . . . may by order or notice of continuance be
continued or recontinued” in the manner set forth in § 54955), § 54955 (West,
Westlaw through 1959 Act 647) (requiring written notice to be “conspicuously
posted on or near the door of the place where the . . . meeting was held
within 24 hours”); Cal. Gov’t Code § 11128.5 (West, Westlaw through 1997 Act
949), § 11129 (West, Westlaw through 1997 Act 949) (same rule for state
bodies); Conn. Gen. Stat. § 1-229 (West, Westlaw through 1975 Act 342), § 1-
228 (West, Westlaw through 1975 Act 342) (notice of continued meeting must be
conspicuously posted on or near the door of the place where the meeting was
held, within twenty-four hours); Wash. Rev. Code § 42.30.090 (West, Westlaw
through 2012 Act 117), § 42.30.100 (West, Westlaw through 1971 Act 250)
(same); Miss. Code Ann. § 25-41-13(1) (West, Westlaw through 2013 Act 388)
(“notice of the place, date, hour and subject matter of any recess meeting . .
. shall be posted within one (1) hour after such meeting is called in a
prominent place available to examination and inspection by the general public
in the building in which the public body normally meets”); N.M. Stat. Ann. §
10-15-1(E) (West, Westlaw through 2013 Act 42) (Public body may recess and
reconvene meeting if, prior to recessing it “specifies the date, time and
place for continuation . . . and, immediately following the recessed meeting,
posts notice of the . . . reconvened meeting on or near the door of the place
where the original meeting was held and in at least one other location
appropriate to provide public notice[.]”); 65 Pa. Cons. Stat. § 703 (West,
Westlaw through 2004 Act 88) (for a recessed or reconvened meeting, notice
must be posted “prominently at the principal office of the agency holding the
meeting or at the public building in which the meeting is to be held”); Wyo.
Stat. Ann. § 16-4-404(c) (West, Westlaw through 2012 Act 75) (“The governing
body of an agency may recess any regular, special, or recessed regular or
special meeting to a place and . . . time specified in an order of recess. A
copy of the order of recess shall be conspicuously posted on or near the door
of the place where the meeting or recessed meeting was held.”).
On the other hand, other states do not require additional notice
for a recessed meeting, see Town of Nottingham v. Harvey, 424 A.2d 1125, 1129
(N.H. 1980) (holding that posting of additional notice for recessed hearing
was not required by statute), or permit oral notice of continuation to be
given. See generally 1 Anne T. Schwing, Open Meeting Laws 3d § 5.44(14) at
341-46 (2011) (describing state statutes requiring meetings to be continued to
a time and place “as set forth in a notice posted at the place of the
continued meeting and/or as announced at the original meeting”); cf. Del Greco
v. Mayor of Revere, 294 N.E.2d 594, 596-97 (Mass. App. Ct. 1973) (finding that
city council has “inherent power” to “adjourn a regular meeting to a date
(continued...)
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advice of the OIP, notified the public of the date, time and
place of the continued meetings through an oral announcement made
at the time of adjournment.26 An oral announcement may be less
accessible than a written notice, require members of the public
to remain to the end of the meeting to hear the oral
announcement, and pose challenges for those who are unable to
attend the meeting or remain to its conclusion.27 Moreover, the
significance of notice to the public is heightened in a situation
where, as was the case here, there are multiple continuances.28
Thus while a continued meeting does not require a board to post a
(...continued)
certain without notice to absent members of the time to which the meeting has
been adjourned”.)
26
As noted, in its 2001 opinion involving the Liquor Commission, the
OIP recommended that a board “should” announce the date, time and place of the
continued meeting at the time of adjournment. OIP Op. Ltr. No. 01-06, 2001 WL
1876821, at *5 (Dec. 31, 2001). In that case, the OIP found that the Liquor
Commission did not in fact reconvene the original meeting, and was thus not
presented with a situation in which a board conducted a series of continued
meetings. The OIP’s recommendation was also made prior to the most recent
amendment to HRS § 92-7(a).
27
Currently, written public notice is required for “any regular,
special, or rescheduled meeting, or any executive meeting when anticipated in
advance.” HRS § 92-7(a) (2012). Although written public notice is not
required for emergency meetings, the board is required to file an emergency
agenda and reasons for its finding that “an imminent peril to the public
health, safety or welfare requires” an emergency meeting with the appropriate
county clerk’s office(s). HRS § 92-8(2012).
28
Meetings that are consecutively continued may pose a risk of
limiting public participation to those members of the public who are able to
attend every meeting and remain until the time of adjournment to hear the oral
announcement. Public participation may be particularly difficult when the
board takes multiple recesses during a single meeting or only meets for a few
minutes in order to reschedule the meeting for another date and time without
providing adequate notice of the subsequent meeting.
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new agenda, nevertheless the means chosen to notify the public of
the continued meeting must be sufficient to ensure that meetings
are conducted “as openly as possible” and in a manner that
“protect[s] the people’s right to know.” HRS § 92-1.
B.
At issue in resolving Petitioners’ second question is
whether the Sunshine Law permits board members to circulate
written memoranda among all other members, in which board members
present proposed actions, include justifications for the
proposals, and seek “favorable consideration” of the proposals.
1.
Under the open meetings requirement of the Sunshine
Law, “[e]very meeting of all boards shall be open to the public
and all persons shall be permitted to attend any meeting unless
otherwise provided in the constitution or as closed pursuant to
sections 92-4 and 92-5.” HRS § 92-3 (1993). A “meeting” is
defined as “the convening of a board for which a quorum is
required in order to make a decision or to deliberate toward a
decision upon a matter over which the board has supervision,
control, jurisdiction, or advisory power.” HRS § 92-2(3) (1993).
The OIP and the Department of the Attorney General
before it have “consistently opined that, under the Sunshine Law,
board members may discuss board business only in a properly
noticed public meeting unless the statute expressly allows
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otherwise.” OIP Op. Ltr. No. 05-015, 2005 WL 2214087, at *2
(Aug. 4, 2005) (emphasis added). See OIP Op. Ltr. No. 04-04,
2004 WL 409087, at *1 (Feb. 20, 2004) (“Based upon the statute’s
definition of the term ‘meeting,’ the OIP interprets the Sunshine
Law to require all discussions, deliberations and decisions
relating to a matter over which the board has ‘supervision,
control, jurisdiction, or advisory power’ . . . to occur at an
open meeting unless specifically exempted.”) (footnote omitted).
Thus, “[g]enerally speaking, discussion among board
members concerning matters over which the board has supervision,
control, jurisdiction or advisory power and that are before or
are reasonably expected to come before the board, outside of a
duly noticed meeting, violates the Sunshine Law.” OIP Op. Ltr.
No. 04-01, 2004 WL 232019, at *1 (Jan. 13, 2004). “That is not
the case if the discussion is authorized as a permitted
interaction” under HRS § 92-2.5. 2004 WL 232019, at *1.
The legislature adopted § 92-2.5 in 1996, “to expressly
allow certain ‘permitted interactions,’ i.e., instances when
board members can discuss or consider board business outside of a
meeting, without notice and without public participation.” OIP
Op. Ltr. No. 05-015, 2005 WL 2214087, at *2. See 1996 Haw. Sess.
Laws Act 267, § 1 at 628 (“the purpose of this Act is to specify
those instances and occasions in which members of a board may
discuss certain board matters . . . in a manner that does not
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undermine the essence of open government”). “Communications,
interactions, discussions, investigations, and presentations
described in [HRS § 92-2.5] are not meetings for purposes” of the
Sunshine Law. § 92-2.5(f) (Supp. 2008).
In this case, the challenged memoranda do not fall
within any of the “permitted interactions” listed in HRS § 92-
2.5.29 The MCC members distributed a total of fourteen memoranda
29
At the relevant time, HRS § 92-2.5 (Supp. 2008) provided:
(a) Two members of a board may discuss between themselves
matters relating to official board business to enable them
to perform their duties faithfully, as long as no commitment
to vote is made or sought and the two members do not
constitute a quorum of their board.
(b) Two or more members of a board, but less than the number
of members which would constitute a quorum for the board,
may be assigned to:
(1) Investigate a matter relating to the official
business of their board; provided that:
(A) The scope of the investigation and the scope of
each member's authority are defined at a meeting of
the board;
(B) All resulting findings and recommendations are
presented to the board at a meeting of the board; and
(C) Deliberation and decisionmaking on the matter
investigated, if any, occurs only at a duly noticed
meeting of the board held subsequent to the meeting at
which the findings and recommendations of the
investigation were presented to the board; or
(2) Present, discuss, or negotiate any position which the
board has adopted at a meeting of the board; provided
that the assignment is made and the scope of each
member's authority is defined at a meeting of the board
prior to the presentation, discussion, or negotiation.
(c) Discussions between two or more members of a board, but
less than the number of members which would constitute a
quorum for the board, concerning the selection of the
board's officers may be conducted in private without
limitation or subsequent reporting.
(d) Discussions between the governor and one or more members
of a board may be conducted in private without limitation or
subsequent reporting; provided that the discussion does not
relate to a matter over which a board is exercising its
adjudicatory function.
(e) Discussions between two or more members of a board and
the head of a department to which the board is
administratively assigned may be conducted in private
(continued...)
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among themselves in relation to the February 8, 2008 meeting and
(...continued)
without limitation; provided that the discussion is limited
to matters specified in section 26-35.
(f) Communications, interactions, discussions,
investigations, and presentations described in this section
are not meetings for purposes of this part.
HRS § 92-2.5 was amended in 2012 to add two more permitted
interactions, which were numbered subsections (d) and (e), below. 2012 Haw.
Sess. Laws Act 177, § 1, at 618-19. Subsections (d)-(f) in the 2008 statute
were accordingly renumbered as subsections (f)-(h).
(d) Board members present at a meeting that must be canceled
for lack of quorum or terminated pursuant to section 92-
3.5(c) may nonetheless receive testimony and presentations
on items on the agenda and question the testifiers or
presenters; provided that:
(1) Deliberation or decisionmaking on any item, for which
testimony or presentations are received, occurs only at a
duly noticed meeting of the board held subsequent to the
meeting at which the testimony and presentations were
received;
(2) The members present shall create a record of the oral
testimony or presentations in the same manner as would be
required by section 92-9 for testimony or presentations
heard during a meeting of the board; and
(3) Before its deliberation or decisionmaking at a
subsequent meeting, the board shall:
(A) Provide copies of the testimony and presentations
received at the canceled meeting to all members of the
board; and
(B) Receive a report by the members who were present
at the canceled or terminated meeting about the
testimony and presentations received.
(e) Two or more members of a board, but less than the number
of members which would constitute a quorum for the board,
may attend an informational meeting or presentation on
matters relating to official board business, including a
meeting of another entity, legislative hearing, convention,
seminar, or community meeting; provided that the meeting or
presentation is not specifically and exclusively organized
for or directed toward members of the board. The board
members in attendance may participate in discussions,
including discussions among themselves; provided that the
discussions occur during and as part of the informational
meeting or presentation; and provided further that no
commitment relating to a vote on the matter is made or
sought.
At the next duly noticed meeting of the board, the board
members shall report their attendance and the matters
presented and discussed that related to official board
business at the informational meeting or presentation.
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the two continued meetings on February 11 and 14. Kanahele, 2012
WL 2974909, at *4 (Ginoza, J., concurring). The ICA majority
opinion found that “[e]ach memorandum was addressed to the other
members of the MCC,” and “contained a description of the proposed
action, the intent and reasoning behind the proposed action, and,
where a motion to amend a bill was proposed, the language sought
to be deleted or added.” Id. at *2 (majority opinion).
The only permitted interaction under § 92-2.5 that
could arguably be applied is subsection (a), which provides that
“[t]wo members of a board may discuss between themselves matters
relating to official board business to enable them to perform
their duties faithfully, as long as no commitment to vote is made
or sought and the two members do not constitute a quorum of their
board.” HRS § 92-2.5 (Supp. 2008) (emphases added). Provisions
providing for exceptions to the open meetings requirement are
“strictly construed against closed meetings.” HRS § 92-1.
The challenged memoranda do not fall within the
permitted interaction described in HRS § 92-2.5(a) because the
memoranda were distributed among all of the members of the MCC
rather than among only two members of the board.
In addition, the challenged memoranda sought a
commitment to vote, by asking for “favorable consideration” of
the proposals contained within them.
In a 2004 opinion, the OIP found that a board member’s
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collection of signatures from other members on documents making a
recommendation for action violated the Sunshine Law because the
conduct occurred outside a public meeting, and the documents
related to official business of the committee and “represent[ed]
the decision of those Committee members who signed the
documents.” OIP Op. Ltr. No. 04-01, 2004 WL 232019, at *4 (Jan.
13, 2004). Alternatively, the board member attempted to
characterize the signatures as “an opportunity for committee
members to record and inform other members of their position on
certain matters.” Id. However, the OIP found that such an
interaction would still be contrary to the Sunshine Law, which
“requires that Committee members discuss Official Business in a
meeting, not through position statements circulated outside of a
meeting.” Id. at *5 (emphasis added). The OIP reasoned,
[T]he Legislature’s intent in enacting the statute was to
ensure that the formation and conduct of public policy,
i.e., discussions, deliberations, decisions and actions, are
conducted openly. The Sunshine Law requires that Committee
members discuss Official Business in a meeting, not through
position statements circulated outside of a meeting. Stated
differently, the forum for “committee members to record and
inform other members of their position on certain matters”
is at a properly noticed meeting, not through documents such
as Exhibit D and E.
Id. (emphases added). Thus, the OIP concluded that the board
member’s conduct did not fall within the permitted interaction
described in § HRS 92-2.5(a). OIP Op. Ltr. No. 04-01, 2004 WL
232019, at *1.
In this case, the fourteen memoranda distributed among
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the MCC members in relation to the meetings on February 8, 11 and
14 clearly constituted position papers in which the committee
members who authored the paper “record[ed] and inform[ed] other
members of their position” on proposed amendments to the Wailea
670 bills. The memoranda were not simply “informational” in the
sense that they recorded the language of the proposed amendment
and delineated any additions or deletions that would be made to
the language of the bills.30 Rather, the memoranda advocated for
the adoption of the proposals, by detailing the rationale and
justifications for the proposals. For example, all of the
memoranda distributed in preparation for the February 14, 2008
MCC meeting cited the Honua#ula representative’s comments at the
prior meeting as justification for the proposed motions for
30
See Maui Rules of the Council Rule 19(B) and (C) (2013), available
at http://www.co.maui.hi.us/documents/24/99/3781/Reso%2013-
003_201301091239244266.pdf, providing:
B. Distributed only at a meeting. Correspondence from any
source that advocates a position on a pending bill or
resolution or on an amendment to a pending bill or
resolution shall not be distributed by a Council member to
other members, except during a meeting on the bill or
resolution.
C. May be distributed outside of a meeting.
1. A Council member may propose a written amendment of
a pending bill or resolution at any time to members of the
Council or the relevant committee; provided, that the
proposal shall only contain: (a) the text of the amendment;
(b) a description of the amendment’s direct effect on the
bill or resolution; and (c) factual information to ensure
that the proposal is appropriately processed.
2. A Council member may transmit proposed legislation
to a committee with a pending item relating to the
proposal’s subject, provided that the transmittal shall only
contain factual information to ensure that the proposal is
appropriately processed.
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reconsideration.
In addition, HRS § 92-2.5(a) expressly states that
“[t]wo members of a board may discuss between themselves matters
relating to official board business to enable them to perform
their duties faithfully, as long as no commitment to vote is made
or sought.” (Emphases added). The challenged memoranda
explicitly sought a commitment to vote, by concluding with the
statement: “I would appreciate your favorable consideration of my
proposal(s). Should you have any questions, please contact me or
the Committee staff[.]” Asking for “favorable consideration” is
clearly equivalent to seeking an affirmative vote on the
proposal.
Thus the ICA majority opinion and the circuit court
erred in characterizing the memoranda as “one-way
communication[s]” or “informational memoranda” that did not
solicit a vote or commitment to vote. Kanahele, 2012 WL 2974909,
at *3. See Fujimoto v. Au, 95 Hawai#i 116, 137, 19 P.3d 699, 720
(2001) (“We review the trial court’s conclusions of law de novo
under the right/wrong standard.”) (brackets omitted).
The solicitation of votes clearly place the challenged
memoranda outside the purview of the permitted interaction under
HRS § 92-2.5(a). As such, the challenged memoranda violated the
Sunshine Law. See OIP Op. Ltr. No. 06-02, 2006 WL 1308299, at *1
(Apr. 28, 2006) (finding committee’s action not authorized by HRS
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§ 92-2.5(b)(1) (Supp. 2005) and opining that “in the absence of
another permitted interaction or other exception, any discussion
about Board business between Board members . . . should have
occurred in a properly noticed meeting of the Board”).
2.
Additionally, even if the memoranda could be considered
a “permitted interaction,” the memoranda would nevertheless
constitute a violation of HRS § 92-5(b) (Supp. 2008), which
provides: “No chance meeting, permitted interaction, or
electronic communication shall be used to circumvent the spirit
or requirements of this part to make a decision or to deliberate
toward a decision upon a matter over which the board has
supervision, control, jurisdiction, or advisory power.”
(Emphases added). The legislature added this limitation with
respect to “permitted interactions” at the same time it adopted
the permitted interactions provision, 1996 Haw. Sess. Laws Act
267, § 3 at 629, specifically to “address[] any potential misuse”
of HRS § 92-2.5 “to defeat the statute’s purpose of protecting
the public’s right to know[.]” OIP Op. Ltr. No. 05-015, 2005 WL
2214087, at *3 (Aug. 4, 2005).
In Right to Know Comm. v. City Council, City & Cnty. of
Honolulu, the ICA considered a case in which seven city council
members co-introduced a resolution to reorganize the council’s
standing committees. 117 Hawai#i 1, 4, 175 P.3d 111, 113 (App.
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2007). The issue was whether HRS § 92-2.5(a) (Supp. 2006)
permitted council members to privately discuss council business
through a series of one-on-one conversations outside of a duly
noticed public meeting. 117 Hawai#i at 3-4, 175 P.3d at 113-14.
Despite finding that HRS § 92-2.5(a) did not “expressly
preclude” such conduct, the ICA found that HRS § 92-5(b) (Supp.
2006) “provide[d] support for concluding that the one-on-one
communications used to deliberate [on the resolution] were
improper.” 117 Hawai#i at 11, 175 P.3d at 121 (footnote
omitted). The court explained that pursuant to § 92-5(b), “when
the public body engages in conduct that may not violate any of
the specific provisions in HRS §§ 92-1 through 92-13 (1993), but
nevertheless ‘circumvents the spirit or requirements’ of the
Sunshine Law, that conduct is impermissible.” 117 Hawai#i at 11,
175 P.3d at 121. The court, relying on the policy declaration in
HRS § 92-1 (1993), explained that the serial communications
regarding Council business circumvented “the spirit of the open
meeting requirement” and “thwarted and frustrated” the “strong
policy of having public bodies deliberate and decide its business
in view of the public[.]” Id. at 12, 175 P.3d at 122.
The OIP, which had addressed the validity of the
Council’s resolution prior to the commencement of the civil suit
in Right to Know, similarly opined that the “[s]erial
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communications could not be a clearer example of the use of a
permitted interaction to circumvent both the letter and the
spirit of the Sunshine Law in direct contravention to section 92-
5(b).”31 OIP Op. Ltr. No. 05-015, 2005 WL 2214087, at *4 (Aug.
4, 2005). The OIP explained that “the council members privately
discussed council business and thereafter approved the Resolution
without any substantive discussion or deliberation, giving the
public no understanding of, for instance, the reasons” for the
passage of the resolution. Id. Thus, the city council
essentially “‘rubber stamped’ a decision that had obviously been
made prior to the meeting through private one-on-one
discussions.” Id.Although there is a practical benefit to reducing
lengthy and complex proposals to writing, “[o]ur statute’s very
purpose is to protect the public’s right to be present during the
Council’s discussion of council business, with the exception of
very specific instances provided, which the legislature expressly
directed shall be strictly construed against closed meetings.”
Id. (quotation marks omitted). In this case, the memoranda did
not simply memorialize the council members’ proposed
31
The ICA held that the OIP’s opinion was not palpably erroneous.
Right to Know, 117 Hawai#i at 13, 175 P.3d at 123.
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amendments.32
As stated, the solicitation of votes is clearly
prohibited by HRS § 92-2.5(a), which provides that two board
members may discuss board business “as long as no commitment to
vote” is “sought.” This prohibition was violated by the
challenged memoranda, which contained a solicitation for votes in
the concluding paragraph of every memorandum. This solicitation,
in addition to taking the memoranda outside the realm of a
permitted interaction, is also the clearest example of the way in
which the memoranda were used to “circumvent the spirit” of the
Sunshine Law “to make a decision or to deliberate toward a
decision” on a matter before the board. HRS § 92-5(b). Such
conduct directly violates the policy of “[o]pening up the
governmental processes to public scrutiny and participation.”
HRS § 92-1.
In addition, although the circuit court found no
evidence of interactions among the members outside of a noticed
32
It is noted that the Florida Attorney General has opined that city
council members “may prepare and distribute their own position statements to
other council members without violating the Government in the Sunshine Law so
long as the council members avoid any discussion or debate among themselves on
these statements.” Fla. Op. Att’y Gen. 2001-21, 2001 WL 276607, at *1 (Mar.
20, 2001). The position statements at issue in that opinion did not “solicit
comments or responses from other council members” and copies were placed “in a
public records file” accessible to the public and the press. Id. However,
the Attorney General stated that the office “strongly discourage[d] such
activity” and that “it would be a better practice to discuss commissioners’
individual positions on matters coming before the board during the course of
an open meeting.” Id. at *1, *3. See Fla. Op. Att’y Gen. 2007-35, 2007 WL
2461925, at *2 (Aug. 28, 2007) (members may send “documents that the [member]
wishes other members” to consider on board matters, “provided that there is no
response from, or interaction related to such documents” among members outside
of a public meeting).
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meeting in regard to the memoranda, the language of the memoranda
encouraged and invited such interaction: “Should you have any
questions, please contact me or the Committee staff[.]”
(Emphasis added). Invitations to discuss board business outside
of a duly noticed meeting also circumvent the spirit and purpose
of the Sunshine Law.
The effect of the challenged memoranda was that the MCC
undermined the public’s ability to witness and participate in the
deliberation process of bills that would have a significant
impact on the community.
For example, prior to the February 14, 2008 MCC
meeting, eight memoranda were distributed amongst the Council
members, detailing proposed motions for reconsideration of votes
to amend the Wailea 670 bills that had been taken at the prior
meeting. “[A]n affirmative decision on [a] motion to reconsider,
even if done without substantive discussion, has substantive
effect: It in essence ‘wipes the slate clean,’ opening up the
underlying question for consideration as if no action had been
taken.” OIP Op. Ltr. No. 07-02, 2007 WL 550326, at *3 (Feb. 2,
2007). The OIP, in the context of considering motions to
reconsider the city council’s adoption of bills, noted that such
motions are not “purely procedural.”33 Id.33
The OIP ultimately opined that “the Sunshine Law required the
Council to specifically list motions to reconsider [the bills] in an agenda
filed more than six calendar days prior to the meeting at which the Motions to
(continued...)
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At the February 14 meeting, some of the motions for
reconsideration that were detailed in the members’ memoranda were
passed with little to no discussion. The motion to reconsider
the MCC’s vote requiring Honua#ula to provide a bond assuring
compliance with zoning conditions was passed with no discussion
on the merits of reconsidering the vote, although there was
significant discussion on the merits of requiring a bond
following the vote for reconsideration. In this manner, the MCC
decided to reconsider many of the amendments passed at the prior
meeting based on justifications set forth in memoranda
distributed outside of a public meeting.
Where the “express premise” of the Sunshine Law is that
opening up the government process to public scrutiny is the only
viable and reasonable way to protect the public, the MCC violated
the Sunshine Law by circulating written justifications of their
proposed actions, 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. Thus, assuming that
the challenged memoranda constituted a permitted interaction, the
memoranda violated the mandate under HRS § 92-5(b) that no
permitted interaction be used to circumvent the spirit or
(...continued)
Reconsider would be considered.” Id. at *4.
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requirements of the Sunshine Law to make a decision or to
deliberate toward a decision upon board business.
C.
Upon finding that the challenged memoranda violated the
Sunshine Law, the ICA concurring opinion found that the violation
did not mandate voiding any action of the MCC pursuant to HRS §
92-11 (2012), which provides that “[a]ny final action taken in
violation of sections 92-3 and 92-7 may be voidable upon proof of
violation[,]” if such suit is commenced within ninety days of the
action. Kanahele, 2012 WL 2974909, at *6-7 (Ginoza, J.,
concurring). The concurring opinion explained that in this case,
no “final action” was taken in violation of HRS § 92-3, as the
challenged memoranda “related to the council’s first reading of
the Wailea 670 bills, there was a subsequent second reading and
passage of the bills on March 18, 2008, and [Petitioners] raise
no challenge to the conduct of the March 18, 2008 council
proceedings[.]” Id. at *6.
Because HRS § 92-3 or § 92-7 must be violated in order
to invoke the voidability provision, the ICA concurring opinion,
in reaching the question of voidability, implicitly concluded
that interaction among board members that does not fall within
HRS § 92-2.5 constitutes a “closed meeting,” or otherwise
violates the open meetings requirement under HRS § 92-3. This
conclusion is consistent with the position taken by the OIP,
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which has opined that discussions among board members concerning
board business that are not permitted by HRS § 92-2.5 or violate
HRS § 92-5(b), renders the board’s action(s) voidable under HRS §
92-11. See OIP Op. Ltr. No. 05-015, 2005 WL 2214087, at *4 (Aug.
4, 2005) (finding serial one-on-one discussions were not
permitted by HRS § 92-2.5(a) and directly violated § 92-5(b), and
concluding “that the Council’s approval of the Resolution and
matters flowing therefrom are voidable”); OIP Op. Ltr. No. 04-01,
2004 WL 232019, at *7 (Jan. 13, 2004) (finding Sunshine Law
violated by discussions and obtaining of signatures from members
“outside of a duly noticed meeting or permitted interaction,” and
recommending “that any action taken by the Committee described
herein as being contrary to the statute should be voided”).
We need not resolve whether the distribution of
memoranda among board members, which does not fall within a
permitted interaction or violates HRS § 92-5(b), constitutes a
violation of § 92-3, so as to trigger the voidability analysis
under § 92-11. Rather, we determine that Petitioners did not
appeal from a “final action” within the meaning of § 92-11 with
respect to the challenged memoranda.
Petitioners’ complaint was filed on March 5, 2008.
The challenged memoranda were distributed and discussed at the
MCC meetings convened on February 8, 11 and 14, 2008.
Petitioners’ complaint asked the circuit court to void actions
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taken at the February 14 meeting, when the MCC voted to pass the
Wailea 670 bills on first reading. Petitioners never challenged
the MCC’s second reading of the bills on March 18, 2008. Thus,
the circuit court did not address or rule upon any actions taken
by the MCC following the first reading of the bills.
As noted by the ICA concurrence, the Sunshine Law does
not define the term “final action.” Kanahele, 2012 WL 2974909,
at *6. The term “final,” when used in the context of a “judgment
at law,” means “not requiring any further judicial action” or
“concluded.” Black’s Law Dictionary 705 (9th ed. 2009). See
Gillan v. Gov’t Emps. Ins. Co., 119 Hawai#i 109, 115, 194 P.3d
1071, 1077 (2008) (court may reference legal or well-accepted
dictionaries to determine ordinary meaning of statutory term in
absence of statutory definition). See also Lindinha v. Hilo
Coast Processing Co., 104 Hawai#i 164, 168, 86 P.3d 973, 977
(2004) (“Generally, a final order is an order ending the
proceedings, leaving nothing further to be accomplished.”)
(quotation marks omitted).
When the Sunshine Law was adopted in 1975, the
legislature placed a ninety-day limit on the voidability
provision. The Judiciary Committee explained that “[v]iolations
cannot be made to render administrative action invalid without
durational limitations.” S. Stand. Comm. Rep. No. 878, in 1975
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Senate Journal, at 1178. “Otherwise, administrative actions
would be robbed of all sense of finality.” Id.The OIP has stated that “[w]here a bill has been acted
upon after second and final reading, a motion to reconsider that
action must be viewed” as an item of reasonably major importance
affecting a significant number of people “because the potential
effect of that motion is to re-open for consideration and action
a bill that has already received a ‘final’ vote – likely after
considerable debate and public testimony.” OIP Op. Ltr. No. 07-
02, 2007 WL 550326, at *4 (Feb. 2, 2007) (emphases added).
Accordingly, we agree with the ICA concurring opinion’s
definition of the term “final action,” by its plain meaning, to
mean “the final act required to carry out the board’s authority
on a matter.” However, the term “act” could be construed broadly
to mean the last ministerial or administrative act. Cf.
Kleinberg v. Bd. of Educ. of the Albuquerque Public Sch., 751
P.2d 722, 727 (N.M. Ct. App. 1988) (“Construction of the term
‘final act’ to mean the last ministerial act taken could lead to
unreasonable, if not absurd, results.”). For example, a final
“act” could be construed to mean the publishing of the board’s
decision or the date on which the written report of the board’s
findings is issued.
Other states have defined “final action,” in the
context of the open meetings law, to mean a “collective positive
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or negative decision” or an actual “vote” by the governing body
on a motion, proposal, resolution, order, or ordinance. See Ind.
Code § 5-14-1.5-2(g) (West, Westlaw through 2013 Act 1102) (“a
vote by the governing body on any motion, proposal, resolution,
rule, regulation, ordinance, or order”); Wash. Rev. Code §
42.30.020(3) (West, Westlaw through 1985 Act 366) (“a collective
positive or negative decision, or an actual vote by a majority of
the members of a governing body . . . upon a motion, proposal,
resolution, order, or ordinance”). See also Cal. Gov’t Code §
11122 (West, Westlaw through 1981 Act 968) (“‘action taken’ means
a collective decision made by the members of a state body, a
collective commitment or promise by the members . . . to make a
positive or negative decision or an actual vote by the members .
. . upon a motion, proposal, resolution, order or similar
action”); Cal. Gov’t Code § 54952.6 (West, Westlaw through 1961
Act 1671) (“‘action taken’ means a collective decision made by a
majority of the members of a legislative body, a collective
commitment or promise by a majority . . . to make a positive or a
negative decision, or an actual vote . . . upon a motion,
proposal, resolution, order or ordinance”); Ky. Rev. Stat. Ann. §
61.805(3) (West, Westlaw through 1994 Act 245) (“‘Action taken’
means a collective decision, a commitment or promise to make a
positive or negative decision, or an actual vote by a majority of
the members of the governmental body”); Neb. Rev. Stat. § 84-
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1410(2) (West, Westlaw through 2012 Act 995) (for purposes of
section on closed sessions, “formal action shall mean a
collective decision or . . . commitment or promise to make a
decision on any question, motion, proposal, resolution, order, or
ordinance or formation of a position or policy”); 65 Pa. Cons.
Stat. § 703 (West, Westlaw through 2004 Act 88) (defining
“official action” to mean recommendations, establishment of
policy, decisions on agency business, or a vote taken “on any
motion, proposal, resolution, rule, regulation, ordinance, report
or order”); Wyo. Stat. Ann. § 16-4-402(a)(i) (West, Westlaw
through 2012 Act 63) (“‘Action’ . . . includ[es] a collective
decision, a collective commitment or promise to make a positive
or negative decision, or an actual vote upon a motion, proposal,
resolution, regulation, rule, order or ordinance at a meeting”).
Thus, we clarify the definition provided by the ICA
concurring opinion and define “final action” in the context of
HRS § 92-11 to mean “the final vote required to carry out the
board’s authority on a matter.”34 Accordingly, the MCC’s first
reading of the Wailea 670 bills did not constitute a “final
action” that is subject to invalidation under HRS § 92-11, as a
second and final reading was required under the Maui County
Charter for the MCC to carry out its authority on the matter.
34
Thus, multiple “final actions” may be taken in the course of
approving a bill, as multiple committees or boards may be required under the
relevant charter to authorize the bill’s continued progress.
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See Charter of the County of Maui § 4-2(1) (2013) (“Every
proposed ordinance shall be initiated as a bill and shall be
passed after two readings on separate days”).
This is not to suggest, however, that HRS § 92-11
applies only to meetings at which a “final action” is taken, or
that any actions taken in violation of the Sunshine Law during
meetings or discussions prior to “final action” are “cured” if
the final action is taken in compliance with the Sunshine Law.
To limit the remedy of HRS § 92-11 in a manner that divorces the
board’s deliberation process from its final action would be
contrary to the declaration of policy and intent in HRS § 92-1,
which provides that “governmental processes,” including
“discussions” and “deliberations,” shall be conducted as openly
as possible. See State v. City of Hailey, 633 P.2d 576, 581
(Idaho 1981) (Bistline, J., dissenting) (“It ought not to be
presumed that the legislature would define ‘meeting’ to include
deliberative sessions but then limit the Act’s remedy to meetings
at which decisions are actually ‘made’ or, of even less moment,
announced.”) (footnote omitted); Sacramento Newspaper Guild v.
Sacramento Cnty. Bd. of Supervisors, 69 Cal. Rptr. 480, 487 (Ct.
App. 1968) (“Only by embracing the collective inquiry and
discussion stages, as well as the ultimate step of official
action, can an open meeting regulation frustrate these evasive
devices.”) (footnote omitted).
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In this case, we define “final action” for the limited
purpose of determining that a complaint seeking invalidation was
not filed within ninety days of a “final action” as required by
HRS § 92-11. We do not define “final action” for the purpose of
defining what constitutes a violation of the Sunshine Law.35
We recognize that other states have adopted many
different approaches to invalidation based on violations of open
meetings law.36 However, we expressly decline to adopt a
standard for determining when a violation of the Sunshine Law
would warrant invalidation under HRS § 92-11.37
Based on the foregoing, we hold that the MCC’s February
14, 2008 vote to pass the Wailea 670 bills on first reading,
where the bills were required to pass a second and final reading,
did not constitute a “final action” within the meaning of HRS §
92-11. Consequently, although the MCC violated the Sunshine Law
by distributing the challenged memoranda in relation to the MCC
meetings convened on February 8, 11 and 14, 2008, these
35
Similarly, we do not define “final action” for purposes of
administrative appeals under HRS Chapter 91.
36
See Schwing, supra note 25 at 901-05; 56 Am. Jur. 2d Municipal
Corporations, Etc. §§ 149-150; Peter G. Guthrie, Annotation, Validity,
Construction, and Application of Statutes Making Public Proceedings Open to
the Public, 38 A.L.R. 3d 1070, 1086-88 (1971).
37
Specifically, we do not adopt any of the approaches to
invalidation referenced in the ICA concurring opinion, which indicated that
the court will not invalidate a final action if the violation was “technical,”
if the board “substantially complied” with the law, or if there was no
demonstrated “prejudicial effect.” Kanahele, 2012 WL 2974909, at *6-7.
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violations do not require invalidation of the MCC’s final action,
voting to pass the Wailea 670 bills on March 18, 2008.
V.
Accordingly, the LUC and MCC 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. However, boards are required at all times to
conduct continued meetings in a manner that conforms to the
spirit and purpose of the Sunshine Law.
The MCC did violate 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. In light of our conclusion that the MCC
violated the Sunshine Law with respect to the challenged
memoranda, we remand to the circuit court for a consideration of
attorneys’ fees under HRS § 92-12(c) (2012). However, for the
reasons set forth above, those violations do not require
invalidation of the MCC’s March 18, 2008 passage of the Wailea
670 bills.
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VI.
The ICA’s October 19, 2012 Judgment on Appeal and the
circuit court’s January 22, 2009 Final Judgment in favor of
Respondents and against Petitioners are affirmed.
Lance D. Collins for /s/ Mark E. Recktenwald
petitioner
/s/ Paula A. Nakayama
Mary Blaine Johnston
for respondent Maui County /s/ Simeon R. Acoba, Jr.
Council and County of Maui
/s/ Sabrina S. McKenna
Jonathan H. Steiner for
respondent Honua#ula Partners, /s/ Richard W. Pollack
LLC
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