The state Supreme Court has sided with opponents of the Ka`u spaceport who claim that a lower court erroneously dismissed its complaint that the now-disbanded Hawai`i Space Development Authority broke the state’s Sunshine Law. The Supreme Court, in a memorandum opinion issued December 11, vacated the First Circuit Court’s dismissal of the Green Sand Community Association’s complaint against the HSDA, its chairman, Admiral Thomas B. Hayward, the Department of Business, Economic Development and Tourism, and others.
The case was remanded to the First Circuit Court for further proceedings. Because the state has since dropped its pursuit of a spaceport development and the HSDA has been disbanded, it is unclear what exactly will happen next.
The Green Sand Community Association brought its complaint against the HSDA and others in 1993, asking the court to “lift the cloak of secrecy” that surrounded deliberations on state policy concerning the development of a spaceport planned to be built in Ka`u, the southernmost district of the Big Island. As advisory boards to the state, the HSDA and three “space advisory committees” were subject to Chapter 92, the state’s Sunshine Law, the association argued through its lawyers, the Sierra Club Legal Defense Fund. Since no agendas were published, posted, or mailed to people requesting notification of meetings, and since no meeting minutes were maintained, these boards were in violation of the law, SCLDF claimed.
The state attorney general asked the court to strike a portion of the complaint as being “redundant, immaterial, and impertinent.” The “impertinent” portions of the complaint, deputy attorney general Rick Eichor argued, included the use of military titles in referring to two of the defendants — Hayward, a retired admiral, and Ken Munechika, a retired lieutenant colonel who was director of the state’s Office of Space Industry. “While the use of a title can convey respect … the plaintiffs’ use of the titles is meant to be pejorative,” Eichor claimed. In any case, he went on to say, should the court not strike this portion of the complaint, Munechika should at least be referred to as colonel, since that was his rank on retirement from the military.
As to the more substantive claim that the public’s right to be informed of the actions of its agencies had been impaired by the secret meetings of these boards, Eichor argued that this was immaterial. “The quantum of interference with the public’s right to know,” he wrote, “is not a material issue in determining whether the body is in fact a board subject to the Sunshine Law.”
The complaint finally alleged “irreparable injury” could result from development of the Ka`u spaceport as anticipated by the HSDA, including environmental damage, harm to rare and endangered species, threats to public health, and, through the expenditure of large amounts of taxpayer money, damage to the state’s fiscal health. Eichor claimed these allegations are “wholly immaterial to allegations concerning whether the public meeting law has been violated.”
In October 1993, the Circuit Court granted Eichor’s motion to strike those portions of the complaint he found objectionable. A month later, it granted Eichor’s motion to dismiss the remainder of the complaint.
SCLDF and Green Sand Community Association appealed the dismissal and part of the order to strike to the state Supreme Court. (The order to strike the complainants’ “impertinent” use of military titles was not part of the appeal.)
‘Abuse of Discretion’
In reviewing the order granting the motion to strike portions of the original complaint, the Supreme Court found the Circuit Court had abused its discretion by failing to view the case in the light most favorable to the plaintiff. In other words, the Circuit Court refused to entertain the argument of the plaintiffs that HSDA and the advisory committees were subject to the Sunshine Law and rather accepted Eichor’s argument that they were not “boards” in any legal sense.
“In construing statutes,” the Supreme Court wrote, “we have long held that ‘the fundamental starting point is the language of the statute itself… [W]here the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning.’ … However, ‘[w]hen there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists’.”
The opinion goes on to cite portions of Chapter 92, underscoring paragraphs 2 and 3 of the law, which call for the provisions requiring open meetings to be “liberally construed” and those providing for exceptions to the open meetings requirements to “be strictly construed against closed meetings.”
“Based on the foregoing principles, and in light of the standard of review applicable to dismissals for failure to state a claim, we hold that the circuit court erred in granting [the state’s] motion” to dismiss, the Supreme Court wrote.
For the next eight pages, the Supreme Court considers the arguments of Eichor that the HSDA and advisory committees are not “boards” under the five-part definition found in Chapter 92.
Under the first part of that definition, a board is “an agency, board, commission, authority, or committee of the state or its political subdivision.” Since the HSDA was established by DBEDT, it is a “committee of the state,” the court found. Similarly, since the space advisory committees were established by the Office of Space Industry, a state office, they “are committees of the state as well,” the court found.
False Distinctions
Eichor argued also that since there was no Senate confirmation of these committees’ members, Chapter 92 did not apply. Again, the Supreme Court rebuffed Eichor’s argument, finding it is “unsupported by the text of HRS ch. 92.”
The second of the five criteria for boards subject to Chapter 92 is that they be created by Constitution, statute, rule, or executive order. Eichor argued that the HSDA and SACs were “created pursuant to” statute, but not “created by” statute, since no statute specifically creates the committees by name. “We disagree,” the Supreme Court said. The legislative history of Chapter 92 “indicates that the Legislature’s interpretation of ‘created by’ was broader than that advocated” by the state, memorandum opinion notes. “But more importantly,” the court goes on to say, “there is no logical reason why a committee specifically named in a statute should be subject to the Sunshine Law while a committee not specifically named in a statute should not…. The manner in which the committee was created is irrelevant to the question of whether committee meetings should be open to the public. Appellees [the state] are making a distinction without a difference.”
The third element of the definition — relating to a board having “supervision, control, jurisdiction or advisory power over specific matters” — was also met, the court found. “HSDA had ‘advisory power’ over the ‘specific matter’ of space policy. Similarly, the SACs apparently serve as a conduit for advice from local communities to the OSI on space-related projects. Therefore, they also have ‘advisory power’ over the ‘specific matter’ of space-related projects affecting their particular communities.”
On the fourth element, that a board be required to conduct meetings, Eichor argued that members of HSDA and the SACs offer advice only as individuals, not as a group. “This assertion may in fact be true,” the court found, “but it completely disregards the standard of review for dismissals for failure to state a claim…. [I]t is clear that ‘meetings,’ as defined in [Chapter 92] were held by the HSDA and the SACs. They met together in order to make decisions or to deliberate towards decisions. Thus, the ‘meetings element’ has been satisfied.”
The fifth element of the definition of a board is that it be “required to take official action.” The “official actions” of the HSDA and the SACs, the court found, are to “make official recommendations.” Committees having only advisory power are specifically included in the language of the statute, the court found, noting that, “Appellees cannot narrow the definition of ‘official actions’ without reading ‘advisory power’ out of the statute.”
“In summary,” the Supreme Court wrote, “the HSDA and the SACs satisfy all five elements of a ‘board’ under HRS §92-2. The circuit court could not conclude, as a matter of law, that the HSDA and the SACs are not ‘boards’. Therefore, the court erred in granting Appellees’ motion to dismiss for failure to state a claim.”
Finally, the Supreme Court considered the lower court’s striking of the claim of irreparable injury from Green Sand Community Association’s original complaint. After citing the language in Chapter 92 relating to court challenge of agency actions, the Supreme Court determined that “allegations of irreparable injury in the complaint were clearly relevant to both a state of enforcement and injunctive relief. Therefore, they were not ‘redundant, immaterial, and impertinent,’ and the circuit court abused its discretion in granting the motion to strike.”
Volume 7, Number 7 January 1997
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