Category Archives: Sunshine

What problem is Honolulu’s curfew supposed to solve?

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I would feel a lot better about the strict measures being imposed via emergency proclamations, such as the latest curfew and ban on travel via “wheeled vehicles” imposed in Honolulu if there were some meaningful transparency incorporated in the process.

Mayor Caldwell, drawing on his emergency powers, declared the 11 pm to 5 am curfew on Thursday, April 9, via Emergency Order 2020-5. You can read the full text of this emergency order here.

What’s troubling to me here is that there is nothing at all in the emergency order itself indicating what problem this curfew is supposed to be the solution for. It recites what the city believes is the legal basis for the order, but nothing about the actual circumstances believed to justify it.

The problem here, it seems to me, is that emergency powers aren’t unlimited. Ultimately, the public should be assured that there is a compelling reason for each emergency policy, and that the specific restrictions on individual rights being imposed are justified and are not more extreme than necessary.

In the case of this curfew, it’s impossible to say because the reasons for it haven’t been openly discussed.

At a press conference at which Mayor Kirk Caldwell announced the curfew, Honolulu Police Chief Susan Ballard made only a few general observations hinting at a problem.

“There are a few who continue to not follow the rules,” Ballard said. “So what I want to let people know, HPD is going to be out there doing stricter enforcement.”

She specifically mentioned increasing enforcement at the beach parks.

But no specifics were given.

If there’s a problem such that a general overnight curfew is the best solution, shouldn’t we know a bit more about it? Are there statistics on police calls to or arrests as the result of significant gatherings of people between 11 p.m. and 5 a.m.? Have there been more than a few hot spots? If so, why not lay out the situation clearly so that those of us in the public understand why we’re being asked to put up with this additional lock-down?

Of course, the curfew doesn’t affect me because I’ve usually been in bed for more than an hour by the time 11 p.m. rolls around. But, in general, the public should be given enough information to be confident that our elected officials are making the best policy decisions. We shouldn’t be asked to accept these policies on faith. This is still a democracy, despite the emergency.

Coronavirus emergency does not justify return to government secrecy

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A Maui attorney today cautioned public officials the current coronavirus emergency does not provide a legal cover to justify a return to secrecy and back room decision making by public agencies, whether intentionally or unintentionally.

Maui attorney Lance Collins directly challenged the notion that Governor David Ige’s emergency proclamation suspending certain provisions of state open government laws means that local government agencies, including boards and commissions, can proceed without worrying about the public’s right to access public meetings and records.

Collins, who has earned a reputation for tackling cases aimed at protecting the rights of the public, especially the underdogs, spelled out his concerns in a letter today addressed to Maui Mayor Michael Victorino and County Council chair Alice Lee.

“Recent statements by some members of the Council and department directors to the media make it seem as though the Council and county boards and commissions are now exempt from open government requirements,” Collins’s letter said.

His letter then spelled out in detail a series of legal reasons why this is not actually the case.

Collins notes that while Gov. Ige did use his emergency powers to suspend certain provisions of the law during the current coronavirus pandemic, his actions did not suspend provisions of the Maui County Charter or the Hawaii State Constitution which spell out the public’s right to know and access government meetings and records.

Emergency rules cannot be used to defeat the host of laws designed to secure regular and appropriate review, related to environmental quality, of development projects, not related to relief or emergency management functions. For example, building a field hospital to treat patients during a public health emergency would be allowed without the otherwise necessary regular review required by law. Allowing building or development to occur that was proposed before the emergency to occur without review simply because the applicant seeks to move forward during the emergency would not be permissible.

As recently as several months ago, the governor was enjoined by the First Circuit Court from using his emergency powers under Chapter 127A, Haw. Rev. Stat. to infringe upon the constitutionally protected traditional and customary practices of Native Hawaiian practitioners at Mauna Kea. An emergency does not suspend the rule of law or common sense but is designed to”protect the public health, safety, and welfare, and to preserve the lives and property of the people of the State[.]” HRS 127A-1

Regarding access to public meetings, Collins argued there is an obligation to provide public access remotely, even if the public can’t be accommodated in person due to the need for social distancing.

As to contested cases or administrative adjudications, the first Supplemental Proclamation suspended Chapters 91 “to the extent … any administrative hearing may be conducted by telephone or video conference without the parties, department, or agency, being physically present in the same location[.]” However, as noted, the [Maui County] Charter imposes a separate requirement that meetings be accessible to the public. Moreover, Chapter 91, Haw. Rev. Stat. establishes a minimum uniform framework by which agencies conduct adjudications as required by constitutional provisions. The proclamation only suspends the uniform procedures. It does not and cannot suspend the obligations imposed by the Constitution.

Collins received the Hawaii Judiciary’s 2018 Pro Bono Award for his pro bono advocacy on important public issues and on behalf of the proverbial “little guy.”

You can read Collins’ full letter here.

Common Cause: Democracy still matters in this time of crisis

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In a press release distributed on Monday, March 17, 2020, Common Cause Hawaii praised lawmakers for taking aggressive action to limit the spread of the coronavirus in the islands.

However, the group cautioned that even during the state of emergency caused by this health crisis, “Democracy still matters.”

Common Cause underscored that even during these extraordinary circumstances, care should be taken “to maximize the ability of the public to continue observing and participating in government proceedings.”

Separately, the environmental watchdog Hawaii’s Thousand Friends questioned parts of Gov. Ige’s latest Emergency Proclamation this week which suspended, without explanation or limitations, of several important environmental and land use laws.

“No explanation is given (in the governor’s most recent emergency declaration) as to why environmental and planning laws are being suspended during this HEALTH emergency,” said Donna Wong, the environmental group’s longtime director. Among the laws being suspended are those relating to environmental impact statements, coastal zone management, and the Land Use Commission.

From the Common Cause press release:

Even though the government continues to function with limited public oversight, public officials, should maximize transparency and remote public participation and limit public business to priority functions. Public officials should do everything in their powers to maximize the ability of the public to continue observing and participating in government proceedings, following these recommendations where possible:

• Postpone routine, non-priority government action until the state of emergency has ended.
• Provide widespread public notice of scheduled government proceedings.
• Provide public access to observe government proceedings via live and recorded video available on government websites.
• Provide public ability to participate in government proceedings via videoconference where possible and, at a minimum, via telephone and submission of written testimony.
• Require all members of the public participating in a meeting or proceeding to be clearly audible and visible at all times, including to the public.
• At the start of the meeting, require the chair to announce the names of any members of the public body participating remotely.
• In the event audio or video coverage of a proceeding or meeting is interrupted, require the presiding official to suspend discussion until audio/video is restored.
• Require all votes to be roll call votes.
• At the beginning of any executive session, require all members of the public body to state that no other person is present or can hear them.
• Record all open sessions of meetings and make such recordings available to the public via government website.

Any reduction in public participation in government proceedings must not be exploited by any political party or interest group for personal, partisan, or other political gain. The same rules of access must apply to everyday Americans and well-connected lobbyists. This is a time for our country to be united to protect each other as we face COVID-19, and that includes respecting and protecting public participation in and oversight of government.

The full press release can be found here.

Hawaii high court considers rule to narrow confidentiality of judicial discipline proceedings

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Hawaii’s Judiciary is soliciting comments on a number of proposed amendments to the Rules of the Supreme Court. The proposed rule changes are currently listed on the Judiciary website.

One of these deals with proceedings of the Commission on Judicial Conduct, which handles complaints against judges. Here’s a description from the commission’s annual report.

Any person may file a complaint relating to the conduct of a judge. Upon receipt of the complaint, the Commission shall determine whether sufficient cause exists to proceed with an investigation. Judicial misconduct involves any violation of the Code of Judicial Conduct. Disability involves the physical or mental inability to perform judicial duties and functions. Judicial misconduct does not include making erroneous findings of fact, reaching an erroneous legal conclusion, or erroneously applying the law.

Even though the Commission may find no further proceedings are necessary, it may recommend that the Supreme Court: issue a private reprimand, admonish the judge that his or her conduct may be cause for discipline, direct professional counseling or assistance to the judge, or impose conditions on the judge’s conduct.

During the period of July 1, 2018 through June 30, 2019, the commission fielded 410 “inquiries,” of which it handled only 17 as complaints. Each of those 17 complaints was dismissed, according to the commission’s most recent annual report available online.

The proposed amendment to the commission’s rules appears to narrow the application of existing confidentiality provisions.

While the confidentiality requirements current apply to “all participants in the proceeding,” the proposed amendment would limit its reach to “the Commission and special counsel and their staffs….”

The amendmendment appears to clarify that the rule doesn’t apply to other participants, perhaps including complainants or other witnesses.

PROPOSED AMENDMENTS TO
RULES OF THE SUPREME COURT OF THE STATE OF HAWAII
(Deleted material is bracketed and stricken; new material is underlined.)

Rule 8. JUDICIAL DISCIPLINE

***
8.4. Confidentiality.
(a) In general. All proceedings involving allegations of misconduct by or disability of a judge shall be kept confidential until and unless the supreme court enters an order for the imposition of public discipline or the judge requests that the matter be public. [All participants in the proceeding] The Commission and special counsel and their staffs shall conduct themselves so as to maintain the confidentiality of the proceedings.
***

I was plaintiff in a federal lawsuit challenging a similarly broad law providing for confidentiality of complaints filed with the Campaign Spending Commission.

The case was argued in the federal district court in Honolulu, and resulted in a decision which declared the confidentiality requirements unconstitutional.

The proposed Judicial Conduct rule appears to prevent a similar type of challenge.

See:

Lind v Grimmer
US District Court for the District of Hawaii
859 F. Supp. 1317 (D. Haw. 1993)
April 20, 1993

Lind v. Grimmer
9th Cir. 1994
Argued and Submitted April 12, 1994
30 F.3d 1115,