Tuesday, January 1, 2008

ICA: Sunshinier Days Ahead for City Council.

Right to Know Committee v. City and County of HNL (ICA December 28, 2007)

Background.
Members of the HNL City Council introduced a resolution seeking to reorganize the Council’s standing committees. The resolution was adopted at a special meeting. Journalists reported that the council members had already discussed the resolution before the meeting was held. The Office of Information Practices (OIP) later questioned the validity of the resolution based on the Hawai’i Sunshine Law (HRS Ch. 92) because Council members had one-on-one chats about the resolution beforehand. Council members countered the OIP with memoranda of their own.

Months later the Council changed the Council Rules to allow the Chair to appoint all committees w/o having to hold a special meeting. Pursuant to these new powers, Donovan Dela Cruz, the Chair at the time, appointed the same members from the older resolution. Various non-profit organizations filed a complaint alleging that the Council violated the Sunshine Laws. The City filed motions to dismiss for mootness grounds, which were denied in part. The circuit court ultimately granted declaratory relief for Plaintiffs and awarded a reduced amount in attorney’s fees because Plaintiffs didn’t succeed in all claims.

May be Moot, but Exceptions Abound. Claims for violations of the Sunshine Law may be brought to the circuit court where a “prohibited act” occurs. HRS § 92-12(c). Claimants can bring the suit for the purposes to (1) require compliance with HRS Ch. 92 or (2) determine the applicability of HRS Ch. 92 to the “discussions or decisions” of public bodies subject to the Sunshine Law. Id. The ICA did not exactly reject the City’s argument that the “prohibited act” had been mooted by the subsequent change in the Council Rules. Rather, the ICA held that there was no error in denying the motion to dismiss because “several exceptions to the mootness doctrine apply here.”

First, there’s the public-interest exception allowing review when the issue affects the public interest. See Johnston v. Ing, 50 Haw. 379, 381, 441 P.2d 138, 140 (1968). Factors to consider include: (1) the public or private nature of the issue; (2) whether it is desirable for an “authoritative determination” for further guidance of public officers; and (3) the likelihood of future recurrence. Id. The Sunshine Law and compliance with it is “obviously a question of a public nature.” Moreover, the ICA held that an authoritative determination would be highly desirable and, given the Council’s opposition to the OIP, the issue could likely come up again.

Second, there’s the capable-of-repetition-yet-evades-review exception. Again, like the last factor in the public-interest exception, it is quite capable of being repeated.

Let the Sunshine In. The alleged violation centered around HRS § 92-2.5, which permits, in most cases, two members on a “board” to speak to one another in order to perform their duties. This is an exception to the general rule that every meeting of all boards shall be open to the public. HRS § 92-3.

While HRS § 92-2.5 does not expressly preclude the serial communications of the Council members, the Plaintiffs asserted that the round robin conversations were improper because it “circumvent[ed] the spirit . . . of [the Sunshine Law.]” HRS § 92-5. The ICA acknowledged that “the phrase ‘circumvent the law’ is far from plain and unambiguous[,]” looked to the policy declarations of the Sunshine Law to glean the Legislature’s intent, and held that “[w]hen Council members engage[] in a series of one-on-one conversations relating to a particular item of Council business . . ., the spirit of the open meeting requirement was circumvented and the strong policy of having public bodies deliberate and decide its business in view of the public was thwarted and frustrated.”

A Quandary. The ICA also noted that when an agency is charged w/ the responsibility of carrying out a statute of “broad and indefinite meaning, courts accord persuasive weight to administrative construction and follow the same, unless the construction is palpably erroneous.” Aio v. Hamada, 66 Haw. 401, 407, 664 P.2d 727, 731 (1983). The OIP is an agency responsible for the administration of the Sunshine Law. According to the ICA, its interpretation, which was favored by the circuit court, was not “palpably erroneous.”

This brings up an interesting point. The HSC recently reviewed a letter from the OIP regarding the Uniform Info. Practices Act de novo because its interpretation of the statute was not w/in its agency expertise. See Olelo. The HSC did not, however, make any mention of the old standard in Aio v. Hamada, as the ICA did here. What a quandary. Has Olelo (or perhaps Paul’s Electrical Service, Inc. v. Befitel, 104 Hawai’i 412, 419-20, 91 P.3d 494, 501-02 (2004), which was applied in Olelo) dispensed with this standard? This issue was not before the ICA. The de novo review of opinion letters comes when the agency is brought before the court and when the agency relies on its administrative decision. That was the case in Olelo. Here, we’ve got an intervening plaintiff and the OIP is not a party in this suit. There is no actual review of the agency decision. The answer to this puzzle, friends, will just have to wait.

Fees: If You Can’t Divvy It, Give In Full. Plaintiffs argued w/o preserving the issue for appeal that the circuit court failed to apply the analysis in Schefke v. Reliable Collection Agency, Ltd., 96 Hawai’i 408, 445, 32 P.3d 52, 89 (2001). Because no additional facts were needed, because resolution would not affect the findings of the lower court, and because of the “great public import” in encouraging Sunshine Law complaintants to bring actions and collect fees, the ICA addressed the issue. See State v. Moses, 102 Hawai’i 449, 456-57, 77 P.3d 940, 947-48 (2003). The ICA found that there was a common core of facts, the legal theories were related, and it would have been difficult to divide the hours expended on a claim-by-claim basis. See Schefke, 96 Hawai’i at 444, 32 P.3d at 88.

Note. The issue on standing to bring a Sunshine Law violation purs. to HRS § 92-12 allowed the Plaintiffs to bring forth this action. It was not addressed fully in this entry.

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