Right to Know Committee v. City Council
| Decision Date | 28 December 2007 |
| Docket Number | No. 27996.,27996. |
| Citation | 175 P.3d 111,117 Haw. 1 |
| Parties | RIGHT TO KNOW COMMITTEE, a Hawai`i non-profit corporation; League of Women Voters of Hawai`i, a Hawai`i non-profit corporation; Society of Professional Journalists, Hawaii Chapter, an Indiana not-for-profit corporation; University of Hawaii Chapter of the Society of Professional Journalists, an Indiana not-for-profit corporation; Big Island Press Club, Inc., a Hawai`i non-profit corporation; Hawai`i Political Reform Project, dba Hawaii Pro-Democracy Initiative, a Hawai`i non-profit corporation; Citizen Voice, a Hawai`i non-profit corporation; and Honolulu Community Media Council, a Hawai`i non-profit corporation, Plaintiffs/Appellees/Cross-Appellants, and State of Hawaii, Intervenor-As-A-Plaintiff/Appellee/Cross-Appellee v. CITY COUNCIL, CITY AND COUNTY OF HONOLULU; Donovan M. Dela Cruz, Todd K. Apo, Barbara Marshall, Charles K. Djou, Ann H. Kobayashi, Rod Tam, Romy M. Cachola, Gary H. Okino, and Nester R. Garcia, in their official capacities as members of the Honolulu City Council, Defendants/Appellants/Cross-Appellees. |
| Court | Hawaii Court of Appeals |
Don S. Kitaoka, Deputy Corporation Counsel (Carrie K.S. Okinaga, Corporation Counsel; Reid M. Yamashiro and Derek T. Mayeshiro, Deputies Corporation Counsel, with him on the briefs), for Defendants/Appellants/Cross-Appellees.
Elijah Yip (Jeffrey S. Portnoy with him on the briefs) (Cades Schutte LLP), Honolulu, for Plaintiffs/Appellees/Cross-Appellants.
Defendants/Appellants/Cross-Appellees the City Council of the City and County of Honolulu (Council) and Donovan M. Dela Cruz, Todd K. Apo, Barbara Marshall, Charles K. Djou, Ann H. Kobayashi, Rod Tam, Romy M. Cachola, Gary H. Okino, and Nester R. Garcia, in their official capacities as members of the Honolulu City Council, (hereinafter, Council and the individual defendants are collectively referred to as Defendants) appeal1 from the Final Judgment entered on May 26, 2006 in the Circuit Court of the First Circuit (circuit court)2.
Plaintiffs/Appellees/Cross-Appellants Right To Know Committee; League of Women Voters of Hawai`i; Society of Professional Journalists, Hawaii Chapter; University of Hawaii Chapter of the Society of Professional Journalists; Big Island Press Club, Inc.; Hawaii Political Reform Project; Citizen Voice; and Honolulu Community Media Council (hereinafter collectively referred to as Plaintiffs) cross-appeal as to the amount of attorney's fees awarded.
The circuit court entered judgment in favor of Plaintiffs and against Defendants as to Count I of Plaintiffs' Complaint; dismissed, without prejudice, Count II as moot; and awarded attorney's fees in favor of the Society of Professional Journalists, Hawaii Chapter, and against Defendants, jointly and severally, on Counts I and III of the Complaint.
On July 7, 2005, seven Council members introduced Resolution 05-243, which sought to reorganize the Council's standing committees. The adoption of Resolution 05-243 was the subject of a special Council meeting scheduled for July 13, 2005. On July 8, 2005, Honolulu newspapers reported that Council members had already discussed the reorganization of the Council's standing committees before the scheduled meeting.
In a July 12, 2005 letter to Council Chair Donovan M. Dela Cruz (Dela Cruz) from Leslie H. Kondo (Kondo), Director of the Office of Information Practices (OIP), the OIP questioned the validity of Resolution 05-2433:
We understand that the City Council intends to consider Resolution No. 05-243 as part of a Special Meeting of the City Council scheduled for Wednesday, July 13. The Resolution was introduced by seven council members apparently for the purpose of reorganizing the Council's standing committees. We have been informed by your office that reorganization of the standing committees requires approval by a majority of the council members. Thus the reorganization of the standing committees is "council business," i.e., a matter over which the Council has supervision, control, jurisdiction, or advisory power. Assuming that to be the case, the Sunshine Law requires you and the other council members to discuss any specifics about the reorganization of the standing committees only as part of a properly noticed meeting unless there is a permitted interaction that allows the council members to discuss the matter privately.
First, it is our understanding that you may have discussed this reorganization in a series of one-on-one meetings with more than three other council members. . . . A . . . permitted interaction allows two council members to privately discuss council business, but under this permitted interaction those two council members may not then discuss the same council business with any other council member outside of a meeting. See [Hawaii Revised Statutes (HRS) § 92-2.5]. Accordingly, if you specifically discussed the reorganization with more than three other council members outside of a meeting, your discussions with those members should have occurred in a meeting open to the public and not through a series of private conversations. See OIP Op. Ltr. No. 04-01.
Second, the manner in which the Resolution was introduced appears to be contrary to the Sunshine Law's purpose of protecting the public's right to participate in and to scrutinize the Council's business. Consistent with this statutory intent, we interpret the Sunshine Law to prohibit council members outside of a meeting from polling other members to gauge support for a matter that is council business and/or from committing to vote to support or to oppose a matter that the Council is considering or is reasonably likely to consider. See id.
The fact that the Resolution was introduced by you and six other council members suggests that you and the other council members discussed the Resolution before it was introduced, which, as discussed above, would be a violation of the Sunshine Law. Even if no discussions occurred, it appears at a minimum that one council member authored the Resolution and requested other council members to co-introduce the Resolution. . . . At a minimum, by asking whether other council members were willing to co-introduce the Resolution, the initiating council member essentially "polled" the other council members as to their preliminary inclinations regarding the proposed reorganization of the standing committees. The statute clearly does not allow council members to decide council business, even if the decision is preliminary and subject to change, outside of a properly noticed meeting.
The special meeting was held as scheduled, and by a vote of eight to one the Council adopted Resolution 05-243.
In a July 19, 2005 letter from Dela Cruz to Kondo, Dela Cruz asked the OIP to review a memorandum prepared by the Office of Council Services "summarizing the case law in other jurisdictions wherein the courts have determined that serial communications are not per se prohibited by the applicable `open meeting' law" and to reconsider OIP's position "that such communications violate Hawai`i's `opening meeting' law, [Hawaii Revised Statutes (HRS) ] Chapter 92" (HRS Chapter 92 is also referred to as the Sunshine Law).
On July 22, 2005, Dela Cruz introduced Resolution 05-260 to amend Council Rules to authorize the Council Chair to appoint all committees and, thus, dispense with the reorganization of Council standing committees through resolution. Resolution 05-260 was amended by Resolution 05-260 CD1, which limited the chair's powers to the appointment of standing committees only.
In a report dated July 28, 2005, the Council's Executive Matters and Legal Affairs Committee explained that the impetus for Resolution 05-260 CD1 was "to take the reorganization of standing committees outside the purview of the [S]unshine [L]aw."
On August 4, 2005, the OIP responded to Dela Cruz with a formal opinion letter, OIP Op. Ltr. No. 05-015, in which the OIP stated that it had not changed its position:
While the Sunshine Law allows two council members to discuss council business between themselves, the statute does not permit either of those council members to then discuss the same council business with any other council members outside of a properly noticed meeting. Such serial communication is contrary to the letter, the intent and the spirit of the statute.
Resolution 05-260 CD1 was adopted by the Council on August 10, 2005. On September 15, 2005, pursuant to his new appointment powers vested in Resolution 05-260 CD1, Dela Cruz reorganized the standing committees. The committees and committee members were the same as those previously set forth in Resolution 05-243.
On October 3, 2005, Plaintiffs filed their Complaint against Defendants. Paragraph 40 of the Complaint (Paragraph 40) described the Council's legal interpretation of the Sunshine Law:
40. Upon information and belief, the Council presently takes the position that the practice of engaging in serial one-on-one communications among Council members regarding a particular Council business is not a violation of the Open Meeting Requirements of the Sunshine Law.
In Count I, Plaintiffs alleged that the one-on-one conversations regarding Resolution 05-243 were in violation of the "Open Meeting Requirements of the Sunshine Law" within the meaning of HRS § 92-2(3) (1993). In Count II, Plaintiffs alleged that because the conversations were in violation of the Sunshine Law, Resolution 05-243 was voidable. Plaintiffs alleged in Count III that pursuant to HRS § 92-12 (1993), they were entitled to reasonable attorney's fees and costs. In their prayer for relief Plaintiffs sought, among other things,
[a] declaratory judgment that Defendants' use of a series of private, one-on-one communications to reach consensus among a majority of Council members regarding reorganization of the Council's standing committees...
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