In re Office of Info. Practices Op. Letter No. F16-01

• Citation: 465 P.3d 733
• Decision Date: 16 June 2020
• Docket Number: SCWC-16-0000568
• Parties: IN RE OFFICE OF INFORMATION PRACTICES OPINION LETTER NO. F16-01
• Court: Supreme Court of Hawai'i

465 P.3d 733

IN RE OFFICE OF INFORMATION PRACTICES OPINION LETTER NO. F16-01

SCWC-16-0000568

Supreme Court of Hawai‘i.

JUNE 16, 2020

James R. Smith, petitioner, pro se

Patricia T. Ohara, and Stella M.L. Kam, Honolulu, for respondent

Robert Brian Black, for amicus curiae

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY MCKENNA, J.

I. Introduction

This case stems from self-represented litigant James R. Smith's ("Smith") December 4, 2015 "Complaint to Initiate Special Proceeding" (sometimes referred to as "Complaint") filed in the Circuit Court of the Second Circuit ("circuit court").¹ On June 16, 2016, the circuit court granted the Office of Information Practices ("OIP")’s motion for judgment on the pleadings, concluding that (1) it did not have jurisdiction to hear Smith's "appeal," and (2) Smith's remedies lie in Hawaii Revised Statutes ("HRS") § 92-12 (Supp. 2012).

On appeal from the circuit court's dismissal of Smith's Complaint, the Intermediate Court of Appeals ("ICA") affirmed. In re Office of Info. Practices Op. Letter No. F16-01, CAAP-16-0000568, 2019 WL 2319285 (App. May 31, 2019) (SDO). The ICA agreed with the circuit court that it lacked appellate jurisdiction and that Smith's remedy falls under HRS § 92-12(c). The ICA also stated that Smith's only procedural remedy would be to bring an original action against the Maui County Council ("MCC"), and not the OIP.

On July 29, 2019, Smith filed an application for writ of certiorari ("application") from the ICA's July 2, 2019 judgment on appeal. In his application, Smith states three questions:

1. Did the ICA gravely err when it affirmed [the circuit court's] order and judgment at issue in this special proceeding, absent a material fact upon which to base its conclusions of law[?]

2. Does allegation of harm and threat of harm to statutory right[s] established at HRS [§§] 92-2.5 and HRS 92-12 provide standing and jurisdiction of [the circuit court] to adjudicate the appeal and to vacate the [OIP] Opinion should it find that such action [is] just; in a special proceeding prosecuted by this private citizen in its capacity of private attorney general[?]

3. Does the ambiguity created by definition of "person" in HRS [§] 92-1 and "individual" in HRS [§] 92F-3 ... lead to absurdit[ies] presented [by the] ICA's affirmation of [the circuit court's] orders, in conflict with HRS [§] 1-15(3) that states in pertinent part "every construction which leads to an absurdity shall be rejected"?

(Capitalization altered and quotation marks added.)

We restate Smith's questions on certiorari as follows:

1. Did the ICA err in affirming the circuit court's judgment based on lack of appellate jurisdiction?

2. Can an individual name OIP as a party in a lawsuit brought under HRS § 92-12(c) seeking circuit court review of an OIP Sunshine Law opinion?

With respect to the first restated question, the issue is whether Smith's "Complaint" is a permissible original Sunshine Law² lawsuit under HRS § 92-12(c)³ or is an impermissible Uniform Information Practices Act ("UIPA") HRS § 92F-43 (Supp. 2012) appeal. In this regard, we have stated that "[p]leadings prepared by pro se litigants should be interpreted liberally," Dupree v. Hiraga, 121 Hawai‘i 297, 314, 219 P.3d 1084, 1101 (2009), and that "Hawai‘i courts and agencies [should] not construe pro se filings in a manner that leads to a decision that does not promote access to justice." Waltrip v. T.S. Enters., Inc., 140 Hawai‘i 226, 241, 398 P.3d 815, 830 (2016).

Although Smith at times refers to his Complaint as an HRS § 92F-43 appeal, it is also entitled "Complaint to Initiate Special Proceedings," and contains numerous references to HRS Chapter 92, the Sunshine Law at issue in the OIP Opinion. Hence, the circuit court should have construed Smith's Complaint as an original action under HRS § 92-12(c) seeking declaratory relief. See County of Kaua‘i v. Office of Information Practices (Kaua‘i v. OIP), 120 Hawai‘i 34, 43-44, 200 P.3d 403, 412-13 (App. 2009) (holding that pursuant to HRS § 92-12(c), "any person" can bring suit in circuit court "to determine the applicability of [Part I of Chapter 92] to the discussions or decisions of the [Kaua‘i] Council").

We also hold that the ICA erred by ruling that Smith was not permitted to name OIP as a defendant.

Finally, we conclude that the "palpably erroneous" standard, and not the "de novo" standard, applies to a review of OIP opinions pursuant to an HRS § 92-12(c) lawsuit.

We therefore vacate the ICA's July 2, 2019 judgment on appeal and the circuit court's July 15, 2016 final judgment, and we remand this matter to the circuit court for further proceedings consistent with this opinion.

II. Background

A. OIP Opinion Letter No. F16-01

On February 21, 2015, Smith filed a complaint with the OIP alleging that the MCC violated the Sunshine Law provisions of HRS §§ 92-2.5(e)⁴ and 92-7.⁵ Smith claimed that HRS § 92-2.5(e) was violated when, together with the mayor, three of nine MCC members attended and participated in a February 19, 2013 community meeting in Kula, Maui. The community meeting was hosted by the Kula Community Association ("KCA"), a non-profit corporation, and it was open to the public. Smith contended that HRS § 92-7 was also violated because MCC did not properly notice its report concerning the community meeting at its March 1, 2013 meeting.

OIP opened a file entitled "S Appeal 13-1." On July 24, 2015, the OIP issued Opinion Letter No. F16-01 ("OIP Opinion"), pursuant to HRS § 92-1.5.⁶ OIP opined that the actions of the council members and the mayor: (1) were permitted under HRS § 92-2.5(e) (2012) because fewer council members than would have constituted a quorum had attended the meeting, and because the council members had reported their attendance and the matters presented at the KCA meeting at the next council meeting on March 1, 2013, and (2) had complied with the notice requirements in HRS § 92-7(a) (2012) because the council members’ report was listed on the council's March 1, 2013 meeting agenda.⁷

B. Circuit court proceedings

On December 4, 2015, Smith, continuing to proceed pro se, filed a document entitled "Complaint to Initiate Special Proceeding" in the circuit court. Although entitled a "complaint," it also indicated in the caption that it was an " HRS 92F-43 Appeal." The "Complaint" started with the statement "Complainant pro se, James R. Smith, pursuant to [HRS] Section 92-12(b) ; HRS 92F-43 and Chapter 2-73 Hawaii Administrative Rules⁸ (HAR) and for this Complaint alleges the following ...."

The Complaint then follows with sections entitled "Jurisdiction," "Venue," and "Substantive Allegation," and "Prayer for Relief." Within the "Jurisdiction" section, Smith cited to the following sections of HRS Chapter 92, the Sunshine Law at issue in his original complaint with the OIP: HRS § 92-1 (1975),⁹ 92-1.5,¹⁰ and 92-6.¹¹ The "Jurisdiction" section also refers to the following sections of the UIPA, HRS Chapter 92F: HRS §§ 92F-3 (1988)¹² and 92F-27 (2012).¹³

OIP then filed a Hawai‘i Rules of Civil Procedure ("HRCP") Rule 12(c) (2004)¹⁴ motion for judgment on the pleadings, arguing that (1) HRS §§ 92F-27 and 92F-43, which are part of the UIPA, do not authorize individuals to appeal OIP Sunshine Law opinions to the circuit court, and (2) HRS § 92-12, which is part of the Sunshine Law, does not authorize members of the public to appeal OIP Sunshine Law opinions; rather, HRS § 92-12 allows individuals to bring actions in the circuit court against state or county boards or commissions that may have violated the Sunshine Law, but not against OIP solely on the basis that OIP is the agency charged with administering the Sunshine Law.

Soon after OIP filed its motion for judgment on the pleadings, Smith filed a motion and an amended motion asking the circuit court to transmit three questions to this court:

1. Whether the circuit court "ha[s] jurisdiction to act upon a motion to transmit to the Hawaii Supreme Court a question of law when a motion for dismissal for want of jurisdiction is pending before it?"

2. Whether "the Circuit Court [may] reverse an OIP Opinion alleged to facilitate conduct not in compliance with provisions of the Hawaii Sunshine Law at issue?"

3. Whether "HRS 92 and HRS 92F, as administered by OIP, prohibit initiation of a special proceeding to challenge an OIP Opinion by a private individual?"

Smith requested that the circuit court "proceed under the parameters set for appeal at HRS [§] 92F-43,"¹⁵ entitled "Agency appeal of a decision by the office of information practices[.]"

On June 16, 2016, the circuit court granted OIP's motion for judgment on the pleadings on the ground that it lacked jurisdiction over Smith's complaint, ruling:

1. Sections 92F-27 and 92F-43, Hawai[‘]i Revised Statutes (HRS) do not authorize individuals to appeal OIP opinions relating solely to chapter 92, HRS, or to otherwise sue the OIP for alleged HRS chapter 92, part 1, violations by Hawai‘i state or county agencies.

2. Appellant's remedy lies in section 92-12, HRS.¹⁶

Final judgment was entered on July 15, 2016.

C. Appeal to the ICA

On August 15, 2016, Smith appealed the circuit court's final judgment to the ICA.¹⁷

Civil Beat Law Center for the Public Interest ("the Law Center") filed an amicus curiae brief with the ICA, maintaining that "[i]t violates the spirit and [the ICA's] prior interpretation of the Sunshine Law to deny the public the right to judicial review of OIP opinions." Specifically, the Law Center pointed out that the ICA had previously held in Kaua‘i v. OIP, 120 Hawai‘i 34, 43-44, 200 P.3d 403, 412-13 that "any person" could bring suit in circuit court "to determine the applicability of [Part I of Chapter 92] to the discussions or decisions of the [Kaua‘i] Council. The statute places no restrictions on who may bring an action under the statute, and no restrictions may be created ...." The Law Center argued that the legislature's 2012 addition of HRS § 92F-43,¹⁸ titled...