Thanks to InverseCondemnation.com and Hawaii Reporter for information on the Reapportionment Commission’s latest moves, including dumping the deputy attorney general who defended the commission before the Hawaii Supreme Court, and having a new legal team ask the court to clarify and/or reconsider its recent unanimous opinion.
But the new legal initiative raises questions about possible sunshine law violations, one careful reader of this blog suggested.
The issue is simple. The reapportionment commission has not met since the Supreme Court’s decision was handed down on January 6. So how/when did the commissioners authorize the filing of this appeal on their behalf?
Bart Dame, who was an active observer and participant in the commission’s public process, sees it this way:
I had expected the Reapportionment Commission to have called a meeting immediately after the Jan 4th Supreme Court ruling which declared their plan to be unconstitutional. In fact, I think it would have been prudent, given the time constraints, for them to have publicly announced such a meeting prior to knowing which way the court was going to rule. Had the court ruled in their favor, it would have allowed them to finalize their report. Were the court to rule against them, it would allow them to huddle and decide what strep to take next.
It appears they HAVE been holding discussions and making decisions, but without benefit of a formal meeting. How else to understand their “decision” to hire outside attorneys and to ask for reconsideration RATHER than using the scarce time available to revise their rejected plan?
How is this not evidence of a blatant violation of the Sunshine Law?
The commission is scheduled to meet this Friday afternoon, January 20. Will they address the question of how these decisions could have been made without benefit of a meeting? And without a meeting, could this action have been taken on behalf of the commission as a whole?
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Appears to be a blatant and further violation from here. Panel’s behavior has been intolerable from get go. Court needs to turn mess over to a competent counsel-master who an can read Hawaii Constitution.
I think it is possible some of the commissioners would like a court-appointed master to assume control. They have staked out a adamantly constructed the position that the exclusion of non-resident military is both distasteful and technically impossible.
If the Court were to appoint a master, it would allow them to continue to cling to those beliefs, present themselves as “patriotic” supporters of the troops AND to criticize the final plan.
There apparently is a group which is threatening to file a challenge in federal court against a plan which, in their view, deducts “too many” military. I believe some of the commissioners have been advising that group.
I know this is a blog but could somebody call and ask?
The number is 586-4100
It would seem to be the professional thing to do? Ask the other side what their take on the accusations and inferences are?
Lopaka43,
I have been trying to get information out of the commissioners for the past six months and have found them to be extremely tight-lipped, especially when it comes to discussions with their attorney. Perhaps you will have better luck? Have at it.
I will definitely be asking the question at the Friday public hearing.
To my mind, there is a limited number of possible ways the decision was made to file a motion for reconsideration. Either the entire commission was polled, a subset of commissioners was polled, the chair unilaterally directed their counsel to file the motion or the attorneys decided–on their own– to file the motion.
Polling the other members would be an unpermited interaction under the Sunshine Law. I do not believe Judge Marks has the authority to make a decision of this sort without consulting the others.
And to believe a deputy AG would decide to file a major motion like this without authorization from the client is unthinkable. At least to me.
It is possible that the commissioners decided at their last legally constituted meeting on October 13, 2011 to instruct counsel to automatically file a motion for reconsideration should the state Supreme Court rule against them, regardless of the Court’s reasoning.
If the commissioners were thinking that far in advance, why wouldn’t they have pre-scheduled a properly noticed meeting of the commission for shortly after the Supreme Court hearing on January 4th? That would have allowed for group consideration of the Court’s ruling, a collective attempt to agree upon the appropriate next step?
That would have been the proper way, and the LEGAL way, to decide who to respond to the Court’s ruling. The decision by the commission to NOT hold a meeting until 16 days after the initial ruling– given the time pressures they face– stuns me. They are better than this.
Drive by opinion made without DD, so for what it’s worth. A motion to strike the pleading asking for reconsideration as not being not lawfully authorized since the decision to file it was made in apparent violation of statute. Just a First Amendment thought. Courts should not be placed in the position of having to answer a question that hasn’t been properly asked.
Sunshine issues aside, from what I’ve read it sounds like the commission and its newly assigned AG attorneys are going to ask for a mulligan because the first attorney from the AG sucked.
Does this have any chance of flying?