Heed court ruling on Sunshine Law

The Hawaii Supreme Court, in a ruling that was thorough and reasoned, opted against invalidating a Maui zoning decision but ultimately sent a message that county and state officials should heed: The Sunshine Law means that the public must have access to government when key decisions are made.

According to the Office of Information Practices, the state agency that administers the Sunshine Law, the high court hadn’t ruled since 1993 on the law, so this decision is being touted by some as a "watershed" ruling. At the very least, it provides some direction on how government should conduct its business openly rather than allowing for only the minimum public input.

The law, which was enacted in 1975, aims to ensure that government business is handled with enough openness, including adequate notifications that meetings are being held.

Justice Richard Pollack wrote the 80-page decision, which traced the legislative history and various interpretations of the law by OIP. The case concerned Maui County Council deliberations over Wailea 670, a residential, golf-course and mixed-use development on 670 acres of land in Wailea, proposed by Honua‘ula Partners LLC.

The case, known as Kanahele v. Maui County Council, was filed by a group of Maui residents on the basis that the Council had violated Sunshine Law requirements when it passed two bills enabling the development.

The justices agreed with the lower courts that there was no violation on two points raised in the complaint:

» The Council’s Land Use Committee gave public notice on its initial meeting on Oct. 18, 2007, but not for the eight continuations of the meeting that followed. The date and time of the reconvened meeting was simply announced at the end of each session. In addition, public testimony was only accepted at the first session.

» Similarly, the Council itself gave notice of a Feb. 8, 2008, meeting but not when the meeting "reconvened" on Feb. 11 and 14.

The problem the court found was with the way the Council circulated several memoranda proposing amendments, between its meetings. Some limited communications are allowed under the Sunshine Law outside a formal meeting, Pollack wrote, but the memoranda did not qualify for that exemption because it was circulated among all members of the Council.

In addition, he wrote, "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. Rather, the memoranda advocated for the adoption of the proposals, by detailing the rationale and justifications for the proposals."

The combined effect of all this was that too many interested parties were left in the dark. A proposed amendment came in belatedly from the U.S. Fish and Wildlife Service, concerned about native species impacts, and they had been alerted only by a member of the public.

And even if there had been no technical violation in the way meetings were reconvened without notice, "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,’" according to the ruling.

We agree. This law was passed 38 years ago — long enough for elected officials to figure things out. It’s time they pay more than lip service to the principle of open government.