Petition For Writ of Mandamus Re Maui Planning Commission

Electronically Filed
Supreme Court
SCPW-20-0000386
21-MAY-2020
06:25 PM
SCPW-20-_________
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
DISAPPEARED NEWS, THE HAWAI‘I ) Maui Planning Commission Dkt. No.

INDEPENDENT, and VICTOR GREGOR ) SM12018/011 (PD1 2019/001, PD2
LIMON, ) 2018/0003)
)
Petitioners, ) PETITION FOR WRIT OF MANDAMUS
vs. )
)
MAUI PLANNING COMMISSION, )
HEARINGS OFFICER of the Maui Planning )
Commission for Docket No. SM1 2018/0011, )
and COUNTY OF MAUI; )
)
Respondents, ) MAUI PLANNING COMMISSION,
vs. ) COUNTY OF MAUI, HEARING OFFICER
) of the Maui Planning Commission for Docket
BRE ICONIC GWR OWNER, LLC, ) No. SM1 2018/0011
MĀLAMA KAKANILUA, PELE DEFENSE )
FUND, HO‘OPONOPONO O MĀKENA, and)
DIRECTOR OF THE DEPARTMENT OF )
PLANNING OF THE COUNTY OF MAUI, )
COUNTY OF MAUI, )
)
Respondents/ Real Parties in Interest )
PETITION FOR WRIT OF MANDAMUS

MEMORANDUM IN SUPPORT OF PETITION
DECLARATION OF VICTOR GREGOR LIMON; APPENDICES “A” -“N”
CERTIFICATE OF SERVICE
LAW OFFICE OF LANCE D COLLINS
Lance D. Collins 8246
Post Office Box 782
Makawao, Hawai‘i 96768
808.243.9292
lawyer@maui.net
Attorney for Petitioners

PETITION FOR WRIT OF MANDAMUS
Petitioners DISAPPEARED NEWS, THE HAWAI‘I INDEPENDENT, and VICTOR

GREGOR LIMON (collectively “PETITIONERS”), by and through their attorney, Lance D.
Collins, respectfully apply to this Court for: (1) orders directing the MAUI PLANNING
COMMISSION and its HEARING OFFICER to answer the Petition; (2) issuance of a writ of
mandamus directing he MAUI PLANNING COMMISSION and its HEARING OFFICER to
open its proceedings in In the Matter of the Application for: BRE ICONIC GWR OWNER, LLC,
Docket No. SM1 2018/0011 and to otherwise comply with the constitutional standards set forth in
Oahu Publications Inc. v. Ahn before closing any contested case proceedings to the public; and, (3) such
further relief as may be proper and just.
Petitioners seek the relief of mandamus by this Petition to correct the clear error of the
MAUI PLANNING COMMISSION and its HEARING OFFICER in ordering contested case
proceedings on a special management area use permit application closed to the public, and to
prevent further infringements of the constitutional rights of Petitioners and the public.
This Petition is presented pursuant to Rule 21 of the Hawai‘i Rule of Appellate Procedure
(HRAP) and Hawaii Revised Statutes (HRS) §602-5(a), and under the Hawai‘i State Constitution,
article I, §§ 3, 4, 6, and 7, and is supported by the attached memorandum, declarations, and
appendices “A” through “N.”
DATED: Makawao, Hawai'i May 21, 2020
___/s/ Lance D. Collins_______________

LANCE D COLLINS
TABLE OF CONTENTS
I. STATEMENT OF FACTS ................................................................................................ 1
II. STATEMENT OF ISSUES PRESENTED AND RELIEF SOUGHT ...........................2
III. STATEMENT OF THE REASONS FOR ISSUANCE OF WRIT ..............................3
A. Requested writ of mandamus is appropriately directed to the Commission. ........................... 3
B. The public has a clear right to access Commission contested case proceedings. .................... 3
1. The Commission has an obligation to open contested case proceedings to the public. ................................... 3
2. Special Management Area use permitting affords extensive public participation........................................ 5
3. The Hearings Officer cannot do indirectly what the Commission cannot do directly. .................................. 6
C. The public has a qualified right of access to the Commission’s contested case proceedings
under the First Amendment ........................................................................................................................ 6
1. The public has a qualified right of access to government proceedings. ......................................................... 6
2. Qualification of public rights of access do not apply in the instant case. ..................................................... 7
3. The public’s right to access government proceedings includes contested case hearings. ................................... 8
D. Governmental emergency orders did not suspend the Commission’s obligations. ................ 9
IV. Conclusion .................................................................................................................... 10
TABLE OF AUTHORITIES
Hawai‘i cases
Chang v. Planning Commission of Maui County, 64 Haw. 431, 643 P.2d 55 (1982) …………………. 1, 4
Freitas v. Administrative Director of the Courts, 104 Hawaiì 483, 92 P.3d 993 (2004) ………………. 1, 8
Horner v. Criminal Injuries Compensation Comm’n, 54 Haw. 294, 506 P.2d 444 (1973) …………………. 3
Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 235-36, 580 P.2d 49 (1978) ……………………. 3, 6, 10
Hui Alaloa v. Planning Comm'n of Maui County, 68 Haw. 135, 705 P.2d 1042 (1985) …….………… 6
Kema v. Gaddis, 91 Hawai‘i 200, 982 P.2d 334 (1999) ……………………………………………. 3
State v. Hashimoto, 47 Haw. 185, 389 P.2d 146 (1963) …………………………..……………… 10
Straub Clinic & Hospital v. Kochi, 81 Hawaiì 410, 414, 917 P.2d 1284 (1996) ………………………. 3
Town v. Land Use Comm’n, 55 Haw. 538, 524 P.2d 84 (1974) …………………………..………… 9
Oahu Publc’ns Inc. v. Ahn, 133 Hawai‘i 482, 331 P.3d 460 (2014) ……………………… 6, 7, 8, 10, 11
Constitutional, County Charter, and statutory provisions
Hawai'i Constitution, article I, § 4 ……………………………………………………………… 3

United States Constitution, 1st amend. ………………………………………………………… 3
Maui Charter §13-9 ………………………………….………..………………….………… 3, 4, 9
HRS §92-4 …………………………………………….………..…………………….………… 4
HRS §92-5 …………………………………………….………..…………………….………… 4
HRS § 91-12 …………………………………………….………..…………………….………… 3
HRS §205A-2 ………………………………………….………..…………………….………… 5
HRS §205A-29 ………………………………………….………..…………………….………… 5
Other cases
Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) ……………………….……..………… 6, 9
Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 751 (2001) …………… 8
Ford Motor Co. v. Abercrombie, 62 S.E.2d 209, 216 (Ga. 1950) …………………………..………… 6
Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982) ……...………………………..………… 6, 8
In re Charlotte Observer, 882 F.2d 850 (4th Cir. 1989) ………………..……………………..…… 8
Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ………………………………………….1, 7, 8
Press-Enterprise Co. v. Superior Court of California (Press II), 478 U.S. 1 (1986) ……………..………… 8
Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984) ………………….………..………… 8
Ohio Bell Tel. Co. v. Pub. Utilities Commission of Ohio, 301 U.S. 292 (1937) …………………………… 7
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) ………………………………....………… 8, 10
United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) ……………………………………...………… 8
Rules
MC §12-202-13 ………………………………………….………..…………………….………… 5
MC §12-202-14 …………………………………………….………..…………………… 4, 5, 10
MC §12-202-17 ………………………………………….………..…………………….………… 5
MC §12-202-26 ………………………………………….………..…………………….………… 5
MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS
This petition concerns whether the public has a constitutional right to access
contested case proceedings of the MAUI PLANNING COMMISSION (Commission). The Maui
County Charter, Maui Planning Commission rules, and this Court’s rulings in Chang v. Planning
Commission of Maui County, 64 Haw. 431, 643 P.2d 55 (1982) and Freitas v. Administrative Director of the
Courts, 104 Hawaiì 483, 92 P.3d 993 (2004) affirmed the public’s qualified rights of access under the
First Amendment standard of public access articulated in Press-Enterprise Co. v. Superior Court, 478
U.S. 1 (1986). Despite these clear authorities, the Commission has not rescinded its orders closing
its contested case proceedings, necessitating the instant Petition for Writ of Mandamus.
I. STATEMENT OF FACTS
On December 6, 2018, Respondent BRE Iconic GWR Owners, LLC (Applicant) noticed its
application for a special management area (SMA) use permit application to expand the Grand Wailea
Resort in Kīhei Maui (application) in the Maui News. Declaration of Victor Gregor Limon (Limon
Decl.) ¶5.
On April 26, 2019, the Maui Planning Department published a “Notice of Hearing” for the
Commission’s May 28, 2019 meeting on the application in the Maui News, Hawaii Tribune Herald,
Garden Isle, West Hawaii Today, and the Honolulu Star-Advertiser. Limon Decl. ¶6; Appendix “G.”
At its May 28, 2019 meeting, the Commission deferred proceedings on the application.
Limon Decl. ¶7.
On June 28, 2019, the Commission received a petition to intervene from Respondents
Mālama Kakanilua, Ho‘oponopono o Mākena, and Pele Defense Fund (Intervenors) concerning
Applicant’s SMA use permit application. Limon Decl. ¶8.
At its January 28, 2020 meeting, the Commission granted the Intervenors’ petition and
appointed hearings officer, Respondent Hearings Officer of the Maui Planning Commission to
conduct contested case proceedings. Limon Decl. ¶9.
On April 6, 2020, Intervenors filed a Motion to Clarify Prehearing Procedures and to Limit
Proposed Discovery. Limon Decl. ¶10, Appendix “A.”
Also on April 6, 2020, the Mayor of Maui County and the Maui County Council chair were
advised, via letter, of open government requirements during the COVID-19 emergency. Limon
Decl. ¶11, Appendix “B.”
On April 11, 2020, the Hearing Officer entered Order No. 1, Denying Intervenors’ Mālama
Kakanilua, Pele Defense Fund, and Ho‘oponopono o Mākena’s Motion to Suspend Contested Case
Proceedings; Prehearing Conference Decisions (“Order No. 1”), which provided in relevant part:
4. The contested case shall be governed by HRS Chapter 91 and not chapter 92 and thus,
the contested case hearing will not be a public hearing and only the parties may attend the
contested case hearing.
Limon Decl. ¶12, Appendix “C.”

On April 17, 2020, the Hearing Officer entered Administrative Order No. 1. Limon Decl.
¶13, Appendix “D.”
On May 7, 2020, the Hearing Officer entered its Order Denying Intervenors’ Motion to
Clarify Prehearing Procedures and to Limit Proposed Discovery (“Order Denying Clarification”),
which provided in relevant part:
A contested case hearing is a process governed by Chapter 91, HRS, entitled
"Administrative Procedures," and not governed by Chapter 92 entitled "Public Agency
Meetings and Records." A contested case is a proceeding in which the legal rights, duties, or
privileges of specific parties are determined after an opportunity for an agency hearing. HRS
§ 91-1. Chapter 91, HRS, does not require an agency hearing to be open to the public.
Limon Decl. ¶14, Appendix “E.”

On May 19, 2020, Petitioners VICTOR GREGOR LIMON, THE HAWAI‘I
INDEPENDENT, and DISAPPEARED NEWS (collectively “Petitioners”), wrote to the Hearing
Officer and the Commission to contest the determination to close contested case proceedings to the
public. Limon Decl. ¶15, Appendix “F.”
On May 19, 2020, after receipt of the letter, the Hearings Officer conducted further closed
proceedings in secret, which proceedings included making certain rulings and announcing an intent
to make other rulings, but did not reference or mention the Petitioners' request. Petitioners have not
received a response from the Commission or the Hearings Officer. Limon Decl. ¶16.
The contested case hearing is presently scheduled to begin this summer 2020. Limon Decl.
¶28.
II. STATEMENT OF ISSUES PRESENTED AND RELIEF SOUGHT
Issues: This petition presents the following issues: (1) whether this is an appropriate case for
mandamus relief; and, (2) whether the COMMISSION is required to open its contested case
proceedings to the public.
Relief Requested: Petitioners seek a writ of mandamus directing the MAUI PLANNING
COMMISSION and its HEARING OFFICER to open its proceedings in In the Matter of the
2
Application for: BRE ICONIC GWR OWNER, LLC, Docket No. SM1 2018/0011 and to otherwise
comply with the constitutional standards set forth in Oahu Publications Inc. v. Ahn before closing any
contested case proceedings to the public; and for such further relief as may be proper and just.
III. STATEMENT OF THE REASONS FOR ISSUANCE OF WRIT
A. Requested writ of mandamus is appropriately directed to the Commission.
A writ of mandamus is an extraordinary remedy, but is the appropriate remedy where a trial
court issues a non-appealable order affecting confidential information. As explained in Kema v.
Gaddis, 91 Hawai‘i 200, 982 P.2d 334 (1999):
A writ of mandamus and/or prohibition is an extraordinary remedy that will not issue unless
the petitioner demonstrates a clear and indisputable right to the relief requested and a lack
of other means to redress adequately the alleged wrong or to obtain the requested action.
Straub Clinic & Hospital v. Kochi, 81 Hawaiì 410, 414, 917 P.2d 1284, 1288 (1996). Such writs
are not meant to supersede the legal discretionary authority of the lower court, nor are they
meant to serve as legal remedies in lieu of normal appellate procedures. Id. Where a trial
court has discretion to act, mandamus will not lie to interfere with or control the exercise of
that discretion, even when the judge has acted erroneously, unless the judge has exceeded his
or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has refused
to act on a subject properly before the court under circumstances in which it has a legal duty
to act. Id.
Id., 91 Hawai‘i at 204-05, 982 P.2d at 338-39 (mandamus is the appropriate remedy where the family
court issues an order releasing confidential files to the media and the order is not immediately
appealable or related to the merits). Mandamus is the appropriate procedure when a non-party seeks
to enforce rights or interests that do not directly concern the subject matter of an adversarial
proceeding. Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 235-36, 580 P.2d 49, 57 (1978). This Court
has issued writs of mandamus when a government commission fails to comply with legal
requirements. E.g., Horner v. Criminal Injuries Compensation Comm’n, 54 Haw. 294, 506 P.2d 444 (1973)
(per curiam) (mandamus requiring government commission to issue written findings of fact and
conclusions of law as required by HRS § 91-12); see also Freitas v. Admin. Director of the Courts, 104
Hawaiì 483, 92 P.3d 993 (2004). Petitioners are non-parties whose rights are affected and have no
recourse to appeal to protect those rights.
B. The public has a clear right to access Commission contested case proceedings.
1. The Commission has an obligation to open contested case proceedings to the public.
Article I, §4 of the Hawai‘i State Constitution and the First Amendment to the United States
Constitution, as well as the requirements of the Charter of the County of Maui (Charter), impose
3
upon the Maui Planning Commission and its hearings officers, an obligation to conduct contested
case proceedings including prehearing conferences in a manner accessible the public and the press.
Section 13-9(2) of the Charter provides: “All meetings of boards and commissions shall be
held in the county building or other publicly owned place. In the event that a publicly owned
building is not available or appropriate for the meeting, the meeting can be held in another facility
that is accessible to the public.” The Charter’s requirement that Commission meetings are held in
county- or other publicly owner venues is only relaxed where there is “another facility that is
accessible to the public.” Id.
Chang v. Planning Commission of Maui County, 64 Haw. 431, 643 P.2d 55 (1982) interpreted
Charter §13-9(2):
the Maui County Charter, in § 13-9, has long prohibited boards and commissions from
taking any official action ‘except at a meeting open to the public in accordance with the law.’
The charter does not provide exceptions to this mandate, nor, again, have we found any in
the network of laws affecting SMA use permit application proceedings.
Id., 64 Haw. at 440, 643 P.2d at 64 (concluding the Commission’s closed proceedings on a SMA use
permit application and subsequent motion to reconsider decision “ran afoul of the planning
commission rules and Maui County Charter.”).
Chang further noted Commission Rule § 1-6 (1980) is “applicable to proceedings before the
commission generally, requires the commission to open all of its meetings 14 to the public ‘(e)xcept
as provided for by law.’” Chang, 64 Haw. at 440, 643 P.2d at 64 quoting Commission Rule § 1-6
(1980). Chang reviewed Commission Rule § 1-6 exceptions for open-meeting requirements “as
provided for by law” and concluded: “[w]e have found no applicable laws either specific or general
allowing the planning commission to hold closed deliberations on SMA use permit applications.”
Id., 64 Haw. at 440, 643 P.2d at 64. Further, Chang specifically rejected:
[The Applicant’s] suggestion that HRS § 92-6(a)(2)'s exemption of adjudicatory functions in
contested cases from Part I of HRS chapter 92 applies to exclude the planning commission's
meeting from Planning Commission Rule 1-6, as § 92-6(a)(2) exempts such functions only
from operation of the statute. Moreover, HRS § 92-71 (1976), making HRS chapter 92
applicable to the state's political subdivisions, allows the counties to fashion more stringent
requirements "relating to mandating the openness of meetings" by charter, ordinance, or
other means which shall supersede the less restrictive statute.
Id., 64 Haw. at 457 n.15, 643 P.2d at 64 n.15. The current Commission rules provide: “All meetings
shall be open to the public except as provided in sections 92-4 and 92-5, HRS, as amended” and
4
explicitly do not exempt quasi-judicial or contested case proceedings from the open meeting
requirement. Maui County Rule (MC) §12-201-14(b) (1993).1
2. Special Management Area use permitting affords extensive public participation.
Special management areas have important public value and the Commission’s decision-
making on uses permitted in these areas likely impact the public. Opening the contested case
hearing is also consistent with coastal zone management policies of promoting public participation
in these processes, of which the SMA permit application proceedings are a part. HRS §205A-
2(c)(8)(A) (“Promote public involvement in coastal zone management processes”).
Special management area use permit procedures require the Commission to “provide public
notice statewide at least twenty days in advance of the hearing” on a SMA permit application. HRS
§205A-29(a). Requirements to provide notice to the public implies that hearings on SMA permits
are also required open to the public. This is reflected in the Commission’s SMA rules require public
notice and a public hearing for Commission proceedings on SMA permit applications, with no
1
HRS §92-4 provides for executive sessions. HRS §92-5 provides:
Exceptions. (a) A board may hold a meeting closed to the public pursuant to section 92-4
for one or more of the following purposes:
(1) To consider and evaluate personal information relating to individuals applying for
professional or vocational licenses cited in section 26-9 or both;
(2) To consider the hire, evaluation, dismissal, or discipline of an officer or employee or
of charges brought against the officer or employee, where consideration of matters affecting
privacy will be involved; provided that if the individual concerned requests an open meeting,
an open meeting shall be held;
(3) To deliberate concerning the authority of persons designated by the board to conduct
labor negotiations or to negotiate the acquisition of public property, or during the conduct
of such negotiations;
(4) To consult with the board's attorney on questions and issues pertaining to the board's
powers, duties, privileges, immunities, and liabilities;
(5) To investigate proceedings regarding criminal misconduct;
(6) To consider sensitive matters related to public safety or security;
(7) To consider matters relating to the solicitation and acceptance of private donations;
and
(8) To deliberate or make a decision upon a matter that requires the consideration of
information that must be kept confidential pursuant to a state or federal law, or a court
order.
(b) In no instance shall the board make a decision or deliberate toward a decision in an
executive meeting on matters not directly related to the purposes specified in subsection (a).
No chance meeting, permitted interaction, or electronic communication shall be used to
circumvent the spirit or requirements of this part to make a decision or to deliberate toward
a decision upon a matter over which the board has supervision, control, jurisdiction, or
advisory power.
5
exception for contested case proceedings. MC §§12-202-13 (SMA Major Permits), -14 (Commission
notified at public meeting of granting of SMA minor permits), -17 (requires notification of
amendments and determinations of SMA permit terms at Commission meeting); -26 (right to appeal
deadline is tied to certain Commission decisions made at an open meeting). SMA permitting rules,
taken as a whole, require open, public access to Commission proceedings.
3. The Hearings Officer cannot do indirectly what the Commission cannot do directly.
The Hearing Officer is an employee, agent, and representative of the Commission. The
Commission cannot evade its legal obligations by delegating contested case administration to the
Hearing Officer. See Hui Alaloa v. Planning Comm'n of Maui County, 68 Haw. 135, 137, 705 P.2d 1042,
1404 (1985) (planning commission unlawfully delegated duties under HRS chapter 205A). "Quando
aliquid prohibetur ex directo, prohibetur et per obliquum" is a legal maxim that when anything is
prohibited directly it is also prohibited indirectly. See Ford Motor Co. v. Abercrombie, 62 S.E.2d 209,
216 (Ga. 1950) (“A command to him to abstain, was a command to him to abstain not only by
himself, but also by his agents” quoting Blood v. Martin, 21 Ga. 127).
C. The public has a qualified right of access to the Commission’s contested case
proceedings under the First Amendment
1. The public has a qualified right of access to government proceedings.
Even in the absence of the above-discussed authority mandating the Commission’s SMA
proceedings be open to the public, the Hawai‘i and U.S. Constitutions guarantee a qualified public
right to observe certain government proceedings. Oahu Publc’ns Inc. v. Ahn, 133 Hawai‘i 482, 494-96,
331 P.3d 460, 472-74 (2014). Rights of public access to government proceedings are among those
rights, “while not unambiguously enumerated in the very terms of the [First] Amendment, are
nonetheless necessary to the enjoyment of other First Amendment rights.” Globe Newspaper Co. v.
Superior Ct., 457 U.S. 596, 604 (1982). “A major purpose of that Amendment was to protect the free
discussion of governmental affairs.” Id. Thus, to the extent that the constitution guarantees a
qualified right of public access, “it is to ensure that this constitutionally protected ‘discussion of
governmental affairs’ is an informed one.” Id. at 605; accord Detroit Free Press v. Ashcroft, 303 F.3d 681,
683 (6th Cir. 2002) (“An informed public is the most potent of all restraints upon misgovernment.”).
As this Court has explained:
The reasons underlying the policy of open and public administration of justice are clear and
compelling. Because of our natural suspicion and traditional aversion as a people to secret
proceedings, suggestions of unfairness, discrimination, undue leniency, favoritism, and
6
incompetence are more easily entertained when access by the public to judicial proceedings
is unduly restricted.
Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 230, 580 P.2d 49, 55 (1978).
Under the test applied by this Court in Oahu Publications v. Ahn, 133 Haw. 482, 331 P.3d 460
(2014), the right of access is based upon two complementary considerations: logic and experience.
Id. quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). Under the experience prong,
Hawai‘i courts consider “whether the place and process have historically been open to the press and
general public because a tradition of accessibility implies the favorable judgment of experience.”
O‘ahu Publc’ns, 133 Hawaiì at 494, 331 P.3d at 472 (internal citations omitted). Under the logic
prong, Hawai‘i courts consider “whether public access plays a significant positive role in the
functioning of the particular process in question.” Id. (internal citations omitted).
The logic prong of the Oahu Publications test is analyzed by looking at the six societal interests
advanced by holding proceedings open to the public: (1) public access promotes informed
discussion of governmental affairs by providing the public with a more complete understanding of
the judicial system, serving an “educative” interest; (2) public access gives assurance that the
proceedings were conducted fairly to all concerned thereby promoting a perception of fairness; (3)
public access provides significant community therapeutic value because it provides an outlet for
community concern, hostility, and emotion; (4) public access serves as a check on the misconduct of
participants by exposing the adjudicatory process to public scrutiny, thus discouraging decisions
based on secret bias or partiality; (5) public access enhances the performance of all involved, and;
(6) public observation of proceedings will discourage perjury because members of the public who
might be able to contradict false testimony will not learn of that testimony unless the proceedings
are open to the public.
All of these elements are present in this matter. The SMA permit application and the
intervention giving rise to the contested case proceedings have received widespread media attention
not just in Maui but across the state. Limon Decl. ¶¶17-18, 25, Appendices “H” and “N.”
Petitioners’ press access to government operations is paramount. Limon Decl. ¶19. Access to this
proceeding by the press and the public furthers each societal interest of the logic prong of the Oahu
Publications test for access.
2. Qualification of public rights of access do not apply in the instant case.
The “rudiment of fair play” required by due process mandate that administrative
adjudications be “fair and open.” Ohio Bell Tel. Co. v. Pub. Utilities Commission of Ohio, 301 U.S. 292,
7
304-05 (1937) (quoted case omitted). This right of access can only be restricted if a particularized
showing is established justifying a denial of access in each particular case where access is denied.
Justifications that have been considered include whether an open proceeding is substantially likely to
prejudice another transcendent interest (Richmond Newspapers v. Virginia, 448 U.S. 555, 581 (1980);
Globe Newspaper v. Superior Court for Norfolk County, 457 U.S. 596, 606-07 (1982)); and, if such likely
prejudice exists, whether any alternative exists to avoid that prejudice without limiting public access.
PressEnterprise Co. v. Superior Court of California (Press II), 478 U.S. 1, 14 (1986); Publicker Industries, Inc. v.
Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984).
Where no substantial likelihood of prejudice exists, whether the limitation of access is
narrowed (in scope and time) to the minimum necessary; Press-Enterprise Co. v. Superior Court of
California (Press I), 464 U.S. 501, 510 (1984), United States v. Antar, 38 F.3d 1348, 1362-63 (3d Cir.
1994). Finally, courts consider whether the limitation of access effectively avoids the prejudice it is
intended to address. See Globe Newspaper, 457 U.S. at 610; In re Charlotte Observer, 882 F.2d 850, 854-
55 (4th Cir. 1989).
The Commission did not provide a particularized showing to justify denial of access.
Instead, the Commission merely repeated that HRS chapter 91 and HRS chapter 92 are different
statutes, and that the former does not explicitly require that all contested case hearings be open to
the public. See Appx. C at 2; E at 2. The Commission’s statement was not particularized and alleged
no justification to deny public access and therefore did not qualify to deny public access. See Oahu
Publc’ns, 133 Hawaiì at 498, 331 P.3d at 476 (Commission could only close proceedings to the
public after finding that closure is necessary to prevent harm to a compelling interest and that harm
cannot be prevented by any alternative other than closure of the hearing).
3. The public’s right to access government proceedings includes contested case hearings.
The public and the media have a qualified right of access to administrative proceedings
adjudicative in nature under the First Amendment and the State constitution in the same way as they
do for judicial court proceedings under Freitas v. Administrative Director of the Courts, 104 Hawaiì 483,
92 P.3d 993 (2004), which held quasi-judicial administrative proceedings are subject to a qualified
right of public access. Because Petitioners have a constitutional right to access contested case
proceedings, the Commission must follow specific procedures before closing such proceedings to
the public. See also Federal Maritime Commission v. South Carolina State Ports Authority, 535 US 751
(2001) (“the proceeding walks, talks, and squawks very much like a lawsuit and that its placement
within the Executive Branch cannot blind us to the fact that the proceeding is truly an
8
adjudication.”) (internal citations omitted). The Sixth Circuit held in the specific context of
administrative hearings:
Democracies die behind closed doors. The First Amendment, through a free press, protects
the people’s right to know that their government acts fairly, lawfully, and accurately in
[administrative] proceedings. When government begins closing doors, it selectively controls
information rightfully belonging to the people. Selective information is misinformation.
Detroit Free Press, 303 F.3d at 683. This mandate applies to both the evidentiary part of a contested
case proceeding as well as any conferences or other prehearing proceedings conducted before the
reception of evidence.
D. Governmental emergency orders did not suspend the Commission’s obligations.
The Commission’s obligation to keep their deliberations open to the public has not been
suspended by any mayoral or gubernatorial emergency proclamation or rule.2 There is no such
authority in the Emergency Management Act, Chapter 127A, HRS, to suspend provisions of the
Constitution or the Charter, in any event.
The Governor’s Supplemental Proclamations 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 supra
Part II.B.1, the Charter imposes a separate requirement that meetings be accessible to the public.
Charter §13-9(2). There is no conflict between these laws because HRS chapter 91 only establishes a
minimum uniform framework by which agencies conduct adjudications as required by constitutional
provisions or other laws. See Town v. Land Use Comm’n, 55 Haw. 538, 524 P.2d 84 (1974) (“[HRS
chapter 91] was adopted to ‘provide a uniform administrative procedure for all state and county
boards, commissions, departments or offices which would encompass the procedure of rule making
and the adjudication of contested cases.”). The Supplementary Proclamation only suspends the
uniform administrative adjudication procedures. It does not, and cannot, suspend obligations
imposed by Federal and State Constitutions or the Charter for due process or public access. Under
these circumstances, any administrative hearing that cannot “be held in another facility that is
accessible to the public” because of limitations related to social distancing, stay-at-home order, lack
of access to internet service, lack of assistance with using new technology, etc., cannot be conducted
because of the obligation imposed by the Charter. Charter §13-9. To the extent that contested cases
2
This Court may properly take judicial notice of the Office of the Governor’s Supplementary
Emergency Proclamation, ¶4.b. dated March 16, 2020; Office of the Mayor of Maui County, Public
Health Emergency Rules, effective March 20, 2020.
9
are nevertheless conducted, they must be open and accessible to the public and the press, including
Petitioners.
Public rights of access can only be restricted if a particularized showing is established
justifying a denial of access in each particular case where access is denied. For instance, courts
consider whether an open proceeding is substantially likely to prejudice another transcendent
interest. See Richmond Newspapers v. Virginia, 448 U.S. 555, 581 (1980). The only transcendental
interests implicated during this emergency are relief efforts and emergency management functions.
In the instant case, “[g]etting the administrative work of Maui County done” is not a transcendental
interest counseling the closure of contested case proceedings. See Appx. D at 1.
Hawai‘i has a long tradition of public access to judicial proceedings, “firmly embedded in our
system of jurisprudence” as a “general policy of open trials.” O‘ahu Publc’ns, 133 Hawaiì at 494, 331
P.3d at 472 quoting Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54 (1978).
Judicial proceedings “are open to the public . . . The fact that they are open serves as a safeguard of
the integrity of our courts.” Id. quoting State v. Hashimoto, 47 Haw. 185, 200, 389 P.2d 146, 155
(1963). The Commission’s Rules themselves state its meetings will follow the standards laid out in
Chapter 92, HRS, with few exceptions. MC §12-201-14(b). Therefore, even if the Governor
suspended Chapter 92, HRS, the Commission Rule adopted the standards contained therein
independently and therefore the suspension of Chapter 92, HRS obligations does not suspend the
discrete rule adopting those standards as an independent rule of procedure. Nor does the
Governor’s proclamation suspend the long tradition and experience of open proceedings.
There is a long history of the press and the community observing and participating in the
work of the Maui Planning Commission. Even when land use decisions are made by other bodies,
the community expects to have further involvement and review at the Maui Planning Commission.
In the last thirty or more years, there is no experience of the Maui Planning Commission closing its
doors to the entirety of a particular case's proceedings. Limon Decl. ¶¶19-26, Appendices “I” to
“N.” Journalists also have an obligation to serve as watchdogs over public affairs and government
and have a duty to ensure that the public's business is conducted in the open. Limon Decl. ¶27.
IV. Conclusion
For these reasons, Petitioners respectfully pray this Court for (1) orders directing the MAUI
PLANNING COMMISSION and its HEARING OFFICER to answer the Petition; (2) issuance of
a writ of mandamus directing the MAUI PLANNING COMMISSION and its HEARING
OFFICER to open its proceedings in In the Matter of the Application for: BRE ICONIC GWR
10
OWNER, LLC, Docket No. SM1 2018/0011 and to otherwise comply with the constitutional
standards set forth in Oahu Publications Inc. v. Ahn before closing any contested case proceedings to
the public; and, (3) such further relief as may be proper and just.
___/s/ Lance D. Collins_______________

LANCE D COLLINS
11
SCPW-20-_________
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
DISAPPEARED NEWS, et al., ) Maui Planning Commission Dkt. No.

) SM12018/011 (PD1 2019/001, PD2
Petitioners, ) 2018/0003)
vs. )
) DECLARATION OF VICTOR GREGOR
MAUI PLANNING COMMISSION, et al, ) LIMON
)
Respondents, )
DECLARATION OF VICTOR GREGOR LIMON
I, VICTOR GREGOR LIMON, declare under penalty of law that the following is true and
correct.
1. I am a Petitioner in the above entitled case.
2. I reside in Honolulu and am over the age of 18. I make the declaration based upon
personal knowledge or information unless the context suggests otherwise.
3. I have been a journalist since 2006 including a five year stint as an editor. I have a
degree in geography and am completing a degree in regional and urban planning. I am currently a
Graduate Assistant in the Department of Urban and Regional Planning at the University of Hawai'i
at Mānoa and am the author of a forthcoming volume on geography and land use on Maui.
4. The Hawai'i Independent is an online newspaper established in 2008 that
covers stories in Hawai'i, and Disappeared News is an online investigative reporting blog established in
2003 that primarily covers stories in Hawai'i but also occasionally national and international stories
involving the Pacific.
5. On December 6, 2018, Respondent BRE Iconic GWR Owners, LLC (Applicant)
noticed its application for a special management area (SMA) use permit application filed by
Applicant to expand the Grand Wailea Resort in Kīhei Maui (application) in the Maui News.
6. On April 26, 2019, the Maui Planning Department published a “Notice of Hearing”
for the Commission’s May 28, 2019 meeting on the application in the Maui News, Hawaii Tribune
Herald, Garden Isle, West Hawaii Today, and the Honolulu Star-Advertiser. Attached as Appendix “G” is a
true and correct copy of the “Notice of Public Hearing Maui Planning Commission” published in
the Honolulu Star Advertiser on April 26, 2019.
7. At its May 28, 2019 meeting, the Commission deferred proceedings on the
application.
8. On June 28, 2019, the Commission received a petition to intervene from
Respondents Mālama Kakanilua, Ho‘oponopono o Mākena, and Pele Defense Fund (Intervenors)
concerning Applicant’s SMA use permit application.
9. At its January 28, 2020 meeting, the Commission granted the Intervenors’ petition
and appointed hearings officer, Respondent Hearings Officer of the Maui Planning Commission to
conduct contested case proceedings.
10. On April 6, 2020, Intervenors filed a Motion to Clarify Prehearing Procedures and to
Limit Proposed Discovery, a true and correct copy of which is attached as Appendix “A.”
11. Also on April 6, 2020, the Mayor of Maui County and the Maui County Council
chair were advised, via letter, of open government requirements during the COVID-19 emergency.
A true and correct copy of the Letter from the Law Office of Lance D Collins to Michael
Victorino, Mayor of the County of Maui, and Lawrence Carnicelli, Chair, Maui Planning
Commission, is attached as Appendix “B.”
12. On April 11, 2020, the Hearing Officer entered Order No. 1, Denying Intervenors’
Mālama Kakanilua, Pele Defense Fund, and Ho‘oponopono o Mākena’s Motion to Suspend
Contested Case Proceedings; Prehearing Conference Decisions (“Order No. 1”), a true and correct
copy of which is attached as Appendix “C.”
13. On April 17, 2020, the Hearing Officer entered Administrative Order No. 1, a true
and correct copy of which is attached as Appendix “D.”
14. On May 7, 2020, the Hearing Officer entered its Order Denying Intervenors’ Motion
to Clarify Prehearing Procedures and to Limit Proposed Discovery (“Order Denying Clarification”),
a true and correct copy of which is attached as Appendix “E.”
15. On May 19, 2020, myself and Petitioners THE HAWAI‘I INDEPENDENT and
DISAPPEARED NEWS (collectively “Petitioners”) wrote to the Hearing Officer and the
Commission to contest the determination to close contested case proceedings to the public. A true
and correct copy of the Letter from the Law Office of Lance D. Collins to Linden Joesting, Hearing
Officer for the Maui Planning Commission, and Lawrence Carnicelli, Chair, Maui Planning
Commission, is attached as Appendix “F.”
16. On May 19, 2020, after receipt of the letter, the Hearings Officer conducted further
closed proceedings in secret, which proceedings included making certain rulings and announcing an
2
intent to make other rulings, but did not reference or mention the Petitioners' request. Petitioners
have not received a response from the Commission or the Hearings Officer.
17. The SMA permit application and the intervention giving rise to the contested case
proceedings have received widespread media attention not just in Maui but across the state.
18. Attached as Appendix “H” is a true and correct copy of Colleen Uechi, “Groups
intervene on resort expansion,” Maui News (Jan. 29, 2020).
19. Petitioners’ press access to government operations is paramount. There is a long
history of the press and the community observing and participating in the work of the Maui
Planning Commission. Even when land use decisions are made by other bodies, the community
expects to have further involvement and review at the Maui Planning Commission. In the last thirty
or more years, there is no experience of the Maui Planning Commission closing its doors to the
entirety of a particular case's proceedings.
20. Attached as Appendix “I” is a true and correct copy of Edwin Tanji, “Hawaiian
remains laid back to rest,” Honolulu Advertiser, A3 (May 7, 1990)
21. Attached as Appendix “J” is a true and correct copy of Gary T. Kubota, “Hawaiians
want say in new Maui park,” Honolulu Star-Bulletin, A4 (Dec. 23, 1996).
22. Attached as Appendix “K” is a true and correct copy of Christie Wilson, “Maui
complex plan OK’d” Honolulu Advertiser, B1, B4 (Sep. 13, 2000).
23. Attached as Appendix “L” is a true and correct copy of Timothy Hurley, “Mākena
rezoning request advances,” Honolulu Advertiser, A1 and A5 (Apr. 15, 2004).
24. Attached as Appendix “M” is a true and correct copy of Christie Wilson, “Maui
community sounds off on mall,” Honolulu Advertiser, A4 (Jul. 10, 2007).
25. Attached as Appendix “N” is a true and correct copy of Alison Schaefers, “Hotel
expansion pans hit snag,” Honolulu Star-Advertiser B1 & B3 (Feb. 10, 2020)
26. It is not tenable for the press and members of the public to have to rely on the
parties to a contested case to report back what occurred because journalists have an obligation to get
as much of the information as possible to ensure the reliability of information in a story. Although
a contested case proceeding is treated as adversarial, there may be important details missed when
reporters must rely upon parties to provide information about the proceedings of secret meetings.
27. Journalists also have an obligation to serve as watchdogs over public affairs and
government and have a duty to ensure that the public's business is conducted in the open.
28. The contested case hearing is presently scheduled to begin this summer 2020.
3
DECLARANT FURTHER SAYETH NAUGHT
DATED: Honolulu, Hawai'i May 21, 2020
________________________________
VICTOR GREGOR LIMON
Declarant
4
APPENDIX "A"
Limit Proposed Discovery, pursuant to Maui County Rule (MC) §§12-201-20 (amended), -66, and -
67, and Rule 26 of the Hawai‘i Rules of Civil Procedure.
Statements made by the Hearing Officer and Intervenors’ counsel during the prehearing
conference were not audible, necessitating the instant motion to clarify prehearing procedures and
Intervenors’ objections to those procedures.
This motion is presented to clarify and object to prehearing procedures proposed by
Applicant BRE ICONIC GWR OWNER, LLC’s (Applicant) in its Prehearing Statement, filed
March 23, 2020, and Memorandum in Opposition to Intervenors’ Motion to Confirm Suspension of
Contested Case Proceedings, filed the March 25, 2020, both adopted at the March 30, 2020
prehearing conference, and, in light of government directives aimed at the cessation of unnecessary
business activities during the coronavirus-19 (COVID-19) pandemic and the Hearing Officer’s oral
denial of Intervenors’ motion to suspend contested case proceedings, to raise complications arising
from the use of teleconferencing and pressing forward with proceedings at a time when access to
information and ability to meet is restricted.
This motion is supported by the attached memorandum, declarations, appendix, and other
files on record in these proceedings.
DATED: Honolulu, Hawai‘i April 6, 2020
___________________________________
LAW OFFICE OF BIANCA ISAKI
BIANCA ISAKI
Attorney for Intervenors
MąLAMA KAKANILUA, PELE DEFENSE
FUND, & HO‘OPONOPONO O MąKENA
2
BEFORE THE MAUI PLANNING COMMISSION
COUNTY OF MAUI
STATE OF HAWAI‘I
In the Matter of the Application for: ) DOCKET NO. SM1 2018/0011,
) PD1 2019/0001, PD2 2018/0003
BRE ICONIC GWR OWNER, LLC )
) MEMORANUM IN SUPPORT OF MOTION
)
MEMORANDUM IN SUPPORT OF MOTION
Intervenors MąLAMA KAKANILUA, a domestic nonprofit corporation, PELE
DEFENSE FUND, a domestic nonprofit corporation, and HO‘OPONOPONO O MąKENA, an
unincorporated association (Intervenors) respectfully submit this Motion to Clarify Prehearing
Procedures and to Limit Proposed Discovery, pursuant to Maui County Rule (MC) §§12-201-20
(amended), -66, and -67, and Rule 26 of the Hawai‘i Rules of Civil Procedure.
Statements made by the Hearing Officer and Intervenors’ counsel during the prehearing
conference were not audible, necessitating the instant motion to clarify prehearing procedures and
Intervenors’ objections to those procedures.
This motion is presented to clarify and object to prehearing procedures proposed by
Applicant BRE ICONIC GWR OWNER, LLC’s (Applicant) in its Prehearing Statement, filed
March 23, 2020, and Memorandum in Opposition to Intervenors’ Motion to Confirm Suspension of
Contested Case Proceedings, filed the March 25, 2020, both adopted at the March 30, 2020
prehearing conference, and, in light of government directives aimed at the cessation of unnecessary
business activities during the coronavirus-19 (COVID-19) pandemic and the Hearing Officer’s oral
denial of Intervenors’ motion to suspend contested case proceedings, to raise complications arising
from the use of teleconferencing and pressing forward with proceedings at a time when access to
information and ability to meet is restricted.

I. BACKGROUND
By email dated March 13, 2020, the Hearing Officer set the prehearing conference for March
30, 2020 with instructions that a prehearing conference submittal should be delivered to her by
March 23, 2020. Declaration of Counsel (Counsel Decl.) ¶2.
On March 16, 2020, the Governor issued a Supplementary Emergency Proclamation.1
On March 20, 2020, the Mayor of the County of Maui issued “emergency rules,” which
suspended proceedings held pursuant to Hawaii Revised Statutes (HRS) chapter 91.2
On March 19, 2020, Intervenors filed a motion to confirm suspension of the contested case
proceedings pursuant to mayoral and gubernatorial emergency rules and orders. Counsel Decl. ¶3.
Intervenors sought to suspend contested case proceedings for reasons including that in-person
meetings are prohibited at this time and Intervenors’ leadership have physical conditions putting
them at higher risk for coronavirus complications. Declaration of Clare H. Apana (Apana Decl.) ¶4;
Declaration of Ashford DeLima (DeLima Decl.) ¶4; Declaration of Palikapu Dedman (Dedman
Decl.) ¶3. In their motion, Intervenors’ raised that their ability to prepare is compromised by the
closure of public libraries and other means of accessing information, Intervenors include those who
lack computer literacy skills, computers, and/ or smartphones, and emergency measures restrict their
ability to access information and confer with each other.
On March 23, 2020, Applicant, Intervenors, and County of Maui Corporation Counsel
(corporation counsel) emailed prehearing submittals to the Hearing Officer. In its submittal,
corporation counsel “suggest[ed] we hold another pre-hearing conference on May 1, 2020 to set a
hearing date. More will be known about our efforts to manage Covid-19 at that time, and it may be
easier to schedule a firm hearing date then.”

1
Office of the Governor’s Supplementary Emergency Proclamation, ¶4.b. dated March 16, 2020.
2
Office of the Mayor of Maui County, Public Health Emergency Rules, effective March 20, 2020.
2
By email dated March 24, 2020, Intervenors’ counsel inquired as to whether the Bluejeans
teleconference link sent by Maui Planning Department staff could be utilized by three Intervenors
to attend the prehearing conference, and thereafter provided three email addresses of the
Intervenors’ representatives. Department staff stated they are “really not to [sic] familiar with this
[Bluejeans program]” and would “get back to the group.” Counsel Decl. ¶5; Appendix “A.”
On March 25, 2020, Applicant emailed a memorandum opposing Intervenors’ motion to
confirm suspension of the contested case proceedings, in which Applicant proposed a discovery
schedule in which parties would have until April 20, 2020 to make written requests for documents,
subpoenas, and serve interrogatories, until May 15, 2020 to substantively respond to those requests,
and the parties would conduct depositions after May 15, 2020. The Applicant further proposed that
the hearing officer would set motions to take place by telephone or video conference.
On March 27, 2020, the corporation counsel emailed a second prehearing submittal, again
recommending delaying scheduling of the hearing, but “[i]f it is determined that a date must be set
at the March 30th Pre Hearing Conference, the County recommends setting the date on June 30,
2020 to accommodate the Covid-19 shut-down.”
At the March 30, 2020 prehearing conference, the Hearing Officer sought presentations on
Intervenors’ motion to confirm suspension of proceedings. Intervenors’ counsel presented
arguments, including that the Applicant presented no good cause to un-suspend the proceedings and
reiterated legal and practical reasons for suspending contested case proceedings and holding the
proceedings in in-person hearings. The Hearing Officer orally ruled that she would deny
Intervenors’ motion to confirm suspension of proceedings, but did not explicitly state whether the
Applicant’s requested discovery schedule would be adopted. Counsel Decl. ¶10.
Also at the prehearing conference, Intervenors’ counsel sought clarification of Applicant’s
statement that it “plans to address all issues, except for the iwi issue, by §12-201-65 motion.” BRE
3
Iconic GWR, LLC’s Prehearing Statement, dated March 23, 2020, at 1 (Applicant’s prehearing
statement). Applicant and the Hearing Officer responded that such motions could be motions for
summary judgment. Intervenors’ counsel objected to depositions and the use of this procedure to
obtain summary judgment as inappropriate to the nature of contested cases. The Hearing Officer
directed Intervenors to file a motion to limit discovery pursuant to Rule 26 of the Hawai‘i Rules of
Civil Procedure (HRCP). Counsel Decl. ¶11.
The Hearing Officer set a discovery conference for April 29, 2020, requested submissions on
the same on April 22, 2020, and agreed with Applicant that discovery could proceed prior to the
discovery conference. Counsel Decl. ¶12.
Also at the prehearing conference, the Hearing Officer the determined to set the contested
case hearing for June 30 to July 2, 2020, although Intervenors’ counsel stated that she had not
confirmed that date with Intervenors. Counsel Decl. ¶14.
The Hearing Officer ruled that the contested case hearings would not be open to the public.
Intervenors’ counsel sought clarification as to how that would apply to Intervenors, which are large
community organizations. Counsel Decl. ¶13.
For the latter part of the proceedings, during which time the Hearing Officer was
conducting scheduling and announcing rulings, Intervenors’ counsel’s audiofeed was beleaguered by
feedback and was unable to fully hear or be heard at the conference. Counsel Decl. ¶14.
Pele Defense Fund’s representative could not attend the prehearing conference because he
does not own a personal computer or a smartphone and rather uses a landline. Dedman Decl. ¶¶5-7.
Only one of the three intervenors’ representatives who sought to attend was able to access the video
component of the prehearing teleconference. Apana Decl. ¶¶6-9; DeLima Decl.¶¶6-7. The two
intervenors’ representatives who were unable to access the video conference additionally could not
fully hear the discussion and stated so in the proceedings. Apana Decl. ¶9; DeLima Decl. ¶7-8. The
4
intervenor representative accessed the video component stated to his counsel that he could not fully
hear the audio component. Counsel Decl. ¶15.
II. ARGUMENT
A. Discovery procured for purposes of motions for summary judgment are inappropriate
to these contested case proceedings.
In light of communication difficulties experienced during the prehearing teleconference,
Intervenors seek to clarify procedures described at the teleconference. Disposing of issues raised by
Intervenors Petition to Intervene, filed June 28, 2019, through summary judgment is inappropriate
in these proceedings, the function of which is to administer procedures, collect evidence, and make
recommendations to the Planning Commission.
1. Planning Commission rules prohibit rulings or motions that involve final determinations.
Planning Commission rules specify that hearing officers have power to:
administer oaths, receive and rule on questions of evidence, set the dates for and hold pre-
hearing conferences to formulate or simplify the issues, rule upon all objections or motions
which do not involve a final determination of the proceeding, receive offers of proof, fix the
length, form and time for the filing of briefs, dispose of any other matter that normally and
properly arises in the course of the orderly and just conduct of a hearing.
Maui County Rule (MC) § 12-201-54(b) (emphasis added). These powers are meant to ensure
hearing officers can fairly and justly receive evidence. The hearing officer proposes recommended
findings of fact, conclusions of law, and a decision and order, but does not make final
determinations during the contested case phase of the proceedings. MC §12-201-77. Final
decisionmaking authority lies with the Planning Commission. MC §12-201-81. Even a hearing
officer’s power to determine the admissibility of evidence may be reviewed by the Planning
Commission in their determination of the matter of the merits. MC §12-201-69(b).
Baker v. Galuteria, 141 Hawaiì 468, 413 P.3d 372 (App. 2018) certiorari denied No. SCWC-16-
0000045 (May 16, 2018) addressed the impropriety of prehearing procedures utilizing motions to
dismiss, which the Board of Registration for the Island of O‘ahu determined to treat as the
5
equivalent of a motion for summary judgment. Id., 141 Hawaiì at 472, 413 P.3d at 375. Baker
concluded the Board lacked authority to conduct summary judgment proceedings under a rule that
gave the chairperson “power for the management of the hearing process, not for the adjudication of
the appeal itself ” and erred in considering the prehearing motion to dismiss. Id., 141 Hawaiì 481-82,
413 P.3d at 385-86 citing HAR §3-172-43(d).3 Similar to the rule allowing only for preliminary
determinations by the chair in Baker, MC § 12-201-54(b) specifically prohibits rulings and motions
that involve final determinations in the proceedings.
2. The Planning Commission’s rules do not permit motions for summary judgment or dismissal.
Planning Commission rules do not provide for summary judgment or dismissal. The Plan-
ning Commission did not adopt all of the HRCP, but rather specified only that HRCP Rules 26
through 32, 34, 36, and 37 relating to discovery are adopted.4 HRCP Rule 56, permitting summary
judgment, or Rule 12, permitting motions to dismiss or for judgment on the pleadings, were not so
adopted, nor could they be because that would undermine the Planning Commission’s responsibility
of making a final decision on the contested case.
By contrast with prehearing procedures provided under the Planning Commission’s rules,
those of the state Public Utilities Commission (PUC) explicitly permit the PUC or its hearings of-
ficer to refer to the HRCP where the PUC rules are silent. HAR §16-601-1. PUC Rules specifically
anticipate motions to dismiss under specific procedures (HAR §§16-601-42, -69), but no such rules
exist in the Planning Commission’s MC chapter 12-201 or -202.

3
The Board of Registration rule at issue in Baker provided in relevant part: “(d) The chairperson of
the board shall be the presiding officer and shall be authorized to make any preliminary
determinations necessary for the prompt and efficient management of the appeal hearing.”
4
While MC §12-201-67 was effective in 1993, relevant HRCP rules were variously amended several
times thereafter (amended September 11, 1996, effective January 1, 1997; further amended May 7,
2004, effective July 1, 2004; further amended August 29, 2014, effective January 1, 2015). Counsel
sought assistance from the University of Hawai‘i William S. Richardson School of Law Library for
on historical versions of the Hawai‘i Rules of Civil Procedure, but was unable to obtain the
information at this time due to widespread library closures. Counsel Decl. ¶17.
6
Lacking rules to permit summary judgment or dismissal procedures, the Planning Commis-
sion’s rules do not provide a standard for either mode of disposing of issues raised in the contested
case proceeding. Instead, MC §12-202-15(g)5 provides that the Planning Commission approves spe-
cial management area permit applications upon finding criteria in HRS §205A-26(2) and (3) are met.
Such a finding further requires determining approval is consistent with Coastal Zone Management
Area objectives, policies, and guidelines, and any other legislatively enacted guidelines. HRS §§205A-
26(2). To grant summary judgment or dismiss issues during the prehearing stage would apparently
require a determination that the issue is not within the scope of the HRS §205A-26 and the objec-
tives, policies, and guidelines provided by HRS chapter 205A or other legislatively enacted guidelines.
The Applicant already indicated that it would seek to dispose of issues inclusive of water, line of
sight, and affordable housing through motions to the hearing officer, however such issues are within
the scope of the objectives, policies, and guidelines required to be reviewed under HRS chapter
205A. Therefore, Applicant could not obtain summary judgment or dismissal of these issues.
B. Applicant’s discovery request is inappropriate to these proceedings.
MC §12-201-67 permits discovery “where appropriate[.]” At the prehearing teleconference,
Intervenors argued that deposing witnesses is unnecessary because the Planning Commission has
already appointed a hearing officer to receive evidence and would constitute a disproportionate
financial burden on Intervenors. The Applicant’s explained they sought discovery, including leave to
conduct depositions, in order to dispose of issues other than “iwi issues” via motions. For reasons
discussed supra Part II.B, Applicant’s proposed use of discovery is inappropriate to contested case
prehearing procedures.

5
MC §12-202-15 provides in relevant part:
(g) The commission shall approve a special management area use permit, subject to terms
and conditions as permitted in sections 205A-26(1) and 205A- 26(3), HRS, as amended, if it
finds the criteria set forth in sections 205A-26(2) and 205A-26(3), HRS, as amended, have
been met.
7
By email dated April 2, 2020, Applicant initiated discovery through interrogatories and
requests for production of documents, prior to conferring with Intervenors in a conference of the
parties. Counsel Decl. ¶16. The Applicant did not file a motion with the Hearing Officer to obtain
a finding that discovery is appropriate and proportionate to some need and the Hearing Officer has
not issued such a finding. Under these procedures, Intervenors have not been afforded an
opportunity to respond to a finding that Applicant’s requested discovery is appropriate. Further,
Maui Planning Commission rules specifically omitted reference to HRCP Rule 33, which addresses
discovery through written interrogatories. Planning Commission rules permitting discovery were
made effective on July 25, 1993 and therefore the rules referenced the HRCP effective at that time.
Intervenors’ counsel is unable to ascertain whether one of the many amendments to the HRCP
included a renumbering of Rule 33, because law libraries, which are the usual source of such
information, are closed. Counsel Decl. ¶17. Therefore, it may be that the Planning Commission
rules prohibit the Applicant’s proposed discovery procedures, but the exigencies of the coronavirus
pandemic prevent Intervenors from ascertaining this information.
C. Contested case hearings are meant to be in facilities accessible to the public.
MC §12-201-54 grants the hearing officer discretion to take lawful action deemed necessary
for the orderly and just conduct of a hearing. The Hearing Officer did not offer reasons for closing
the contested case hearings to the public other than to note that HRS chapter 91 hearings are not
governed by HRS chapter 92. Intervenors pointed out that they consist in large community
organizations. It is unclear whether the attendance of Intervenors, as parties composed of many
community members, will be compromised by closing off the contested case hearing from the
public. And if Intervenors’ participation in their contested case hearing will not be so compromised,
it is unclear as to why it is necessary to close off the hearing to the public. Further, opening the
contested case hearing is consistent with coastal zone management policies of promoting public
8
participation in these processes. HRS §205A-2(c)(8)(A).
Maui County Charter requires all meetings of boards and commissions to be held in publicly
owned places or “in another facility that is accessible to the public.” Id. §13-9(2). Closing contested
case hearings to the public contravenes the Charter. The Planning Commission cannot delegate to
the Hearing Officer powers that the commission does not have or that would constitute an evasion
of its legal obligations. See Hui Alaloa v. Planning Comm'n of Maui County, 68 Haw. 135, 137, 705 P.2d
1042, 1404 (1985) (planning commission unlawfully delegated duties under HRS chapter 205A).
"Quando aliquid prohibetur ex directo, prohibetur et per obliquum" is a legal maxim that when
anything is prohibited directly it is also prohibited indirectly. See Ford Motor Co. v. Abercrombie, 62
S.E.2d 209, 216 (Ga. 1950) ("A command to him to abstain, was a command to him to abstain not
only by himself, but also by his agents" quoting Blood v. Martin, 21 Ga. 127).
III. CONCLUSION
For the foregoing reasons, Intervenors seek a revised written ruling that: (1) prohibits the use
of summary judgment to dispose of issues relevant, material, and not cumulative in these
proceedings; (2) requires proponents of a request for subpoenas to depose witnesses to support
their request with reasons that a deposition is necessary prior to the contested case hearing; and, (3)
to revisit the date for contested case hearings and discovery to require parties to confer on discovery
issues prior to initiating discovery and attending the April 30, 2020 discovery conference.
___________________________________
BIANCA ISAKI
9
COUNTY OF MAUI
STATE OF HAWAI‘I
) PD1 2019/0001, PD2 2018/0003
) DECLARATION OF COUNSEL
)
DECLARATION OF COUNSEL
I, BIANCA ISAKI, declare under penalty of law that the following is true and correct.
1. I am counsel for Intervenors MąLAMA KAKANILUA, a domestic nonprofit
corporation, PELE DEFENSE FUND, a domestic nonprofit corporation, and
HO‘OPONOPONO O MąKENA, an unincorporated association in the above entitled case.
2. By email dated March 13, 2020, the Hearing Officer set a prehearing conference for
March 30, 2020 and a March 23, 2020 deadline for prehearing conference submittal.
3. On March 19, 2020, Intervenors filed a motion to confirm suspension of the
contested case proceedings pursuant to mayoral and gubernatorial emergency rules and orders.
4. By email dated March 24, 2020, Maui Planning Department staff provided the
following web link from Maui Planning Department staff and provided the same to the three
intervenors who sought to attend the prehearing conference:
https://bluejeans.com/561151152?src=calendarLink
5. On March 24, 2020, I inquired as to whether the Bluejeans teleconference link sent
by Maui Planning Department staff could be utilized by three Intervenors to attend the prehearing
conference, and thereafter provided three email addresses of the Intervenors. Department staff
stated they are “really not to [sic] familiar with this” and would “get back to the group.” A true and
correct copy of the email from Ann Cua, Planner, Maui Planning Department, dated March 24, 2020
is attached as Appendix A.
6. Also on March 24th and March 29th, 2020, I forwarded the Bluejeans teleconference
link to three Intervenor representatives: Kaniloa Kamaunu, Clare H. Apana, and Ashford DeLima.
7. Upon inquiry from the Hearing Officer, I confirmed the Intervenors’ representatives
sought to witness the prehearing conference and only I would speak for the Intervenors.
8. On March 27, 2020, corporation counsel submitted a second prehearing conference
submittal.
9. I attended the March 30, 2020 prehearing conference in these proceedings by using
the provided web link.
10. At the March 30, 2020 prehearing conference, the Hearing Officer sought
presentations on Intervenors’ motion to confirm suspension of proceedings. Intervenors’ counsel
presented arguments, including that the Applicant presented no good cause to un-suspend the
proceedings and reiterated legal and practical reasons for suspending contested case proceedings and
holding the proceedings in in-person hearings. The Hearing Officer orally ruled that she would
deny Intervenors’ motion to confirm suspension of proceedings, but did not explicitly state whether
the Applicant’s requested discovery schedule would be adopted.
11. At the prehearing teleconference, and in response to our objections to the Applicant
BRE ICONIC GWR, LLC’s proposal to conduct discovery and then dispose of all issues other than
“iwi issues” through motions, the Hearing Officer agreed with the Applicant that discovery could be
used for motions for summary judgment. I objected to depositions and the use of this procedure to
obtain summary judgment as inappropriate to the nature of contested cases. The Hearing Officer
directed Intervenors to file a motion to limit discovery pursuant to Rule 26 of the Hawai‘i Rules of
Civil Procedure (HRCP).
12. The Hearing Officer set a discovery conference for April 29, 2020, requested
2
submissions on the same on April 22, 2020, and agreed with Applicant that discovery could proceed
prior to the discovery conference.
13. The Hearing Officer ruled that the contested case hearings would not be open to the
public. Intervenors’ counsel sought clarification as to how that would apply to Intervenors, which
are large community organizations.
14. The Hearing Officer the determined to set the contested case hearing for June 30 to
July 2, 2020, although I stated that I needed to confirm that date with Intervenors.
15. For the latter part of the proceedings, during which time the Hearing Officer was
conducting scheduling and announcing rulings, my audiofeed seemed to be beleaguered by feedback
and I was unable to fully hear others or be heard at the conference. Kaniloa Kamaunu later
complained that he could not fully access the audio component of the conference.
16. By email dated April 2, 2020, Applicant initiated discovery prior to conferring with
Intervenors.
17. On April 3, 2020, I sought assistance from the University of Hawai‘i William S.
Richardson School of Law Library for information on historical versions of the Hawai‘i Rules of
Civil Procedure, but was unable to obtain the information at this time due to widespread library
closures.
DECLARANT FURTHER SAYETH NAUGHT
___________________________________
BIANCA ISAKI
3
COUNTY OF MAUI
STATE OF HAWAI‘I
) PD1 2019/0001, PD2 2018/0003
) DECLARATION OF CLARE H. APANA
)
DECLARATION OF CLARE H. APANA
I, CLARE H. APANA, declare under penalty of law that the following is true and correct.
1. I make this declaration based upon my personal knowledge, information and belief.
2. I am a resident of the island of Maui and the County of Maui.
3. I am the President of MąLAMA KAKANILUA, a domestic nonprofit corporation,
which is an intervenor in the above-entitled contested case proceedings.
4. We sought, through our counsel, to suspend contested case proceedings for sixty-
days during the coronavirus-19 crisis, for reasons including that we prefer to meet in person and in-
person meetings are prohibited at this time pursuant to the Mayor’s Public Health Emergency Rules,
effective March 20, 2020.
5. I understand that I have a higher risk for coronavirus-19 complications because I am
more than sixty years old, have been medically diagnosed with asthma, and have reduced lung
capacity. I am also legally blind.
6. I and another member of MĆlama Kakanilua sought to attend the prehearing
conference in these proceedings on March 30, 2020.
7. The prehearing conference was held by Bluejeans videoconference, organized by the
Maui Department of Planning staff.
8. I used the following web link, which was provided by Planning Department staff, to
COUNTY OF MAUI
STATE OF HAWAI‘I
) PD1 2019/0001, PD2 2018/0003
) DECLARATION OF ASHFORD DELIMA
)
DECLARATION OF ASHFORD DELIMA
I, ASHFORD DELIMA, declare under penalty of law that the following is true and correct.
1. I make this declaration based upon my personal knowledge, information and belief.
2. I am a resident of the island of Maui and the County of Maui.
3. I am the President of HO‘OPONOPONO O MąKENA, a domestic nonprofit
corporation, which is an intervenor in the above-entitled contested case proceedings.
4. We sought, through our counsel, to suspend contested case proceedings for sixty-
days during the coronavirus-19 crisis, for reasons including that we prefer to meet in person and in-
person meetings are prohibited at this time pursuant to the Mayor’s Public Health Emergency Rules,
effective March 20, 2020.
5. I am more than sixty years old, have been medically diagnosed with asthma, and have
reduced lung capacity.
6. I sought to attend the prehearing conference on March 30, 2020, by clicking on the
following web link: https://bluejeans.com/561151152?src=calendarLink.
7. I was not able to see the participants in the prehearing conference and the audio
quality was so poor and interrupted by feedback that I was unable to hear much of what was said,
including by my own legal counsel.
8. I interrupted the prehearing conference to state that I was not able to hear any of the
APPENDIX “A”
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COUNTY OF MAUI
STATE OF HAWAI‘I
) PD1 2019/0001, PD2 2018/0003
) CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date an electronic copy of the foregoing was
served upon the following parties via email e-filing procedures modified pursuant to the Mayor’s
Emergency Rules and MC §12-201-20 (amended) and an original will be submitted to the Planning
Department, postage prepaid as follows:
LINDEN H. JOESTING MOANA LUTEY

P.O. Box 367 KRISTIN TARNSTROM
Kula, Hawai‘i 96790 Department of the Corporation Counsel
email: attys4vets@gmail.com Kaulana o Maui Building
200 S. High Street, 3rd Floor
Hearing Officer, Wailuku, Hawai‘i 96793
MAUI PLANNING COMMISSION moana.lutey@mauicounty.gov
Kristin.Tarnstrom@co.maui.hi.us
WILLIAM MEHEULA
Sullivan, Meheula, and Lee, LLLP Attorneys for
Pacific Guardian Center, Makai Tower DIRECTOR OF THE DEPARTMENT OF
733 Bishop Street, Suite 2900 PLANNING, COUNTY OF MAUI
Honolulu, Hawai‘i 96813
meheula@smlhawaii.com ANN CUA
Maui Planning Department
Attorney for Applicant One Main Plaza, 2200 Main Street
BRE ICONIC GWR OWNER, LLC Wailuku, Hawai‘i 96793
ann.Cua@co.maui.hi.us
___________________________________
BIANCA ISAKI
April 6, 2020
Hon. Michael Victorino Hon. Alice Lee via electronic mail

Mayor Chair
County of Maui Maui County Council
200 S. High Street 200 S. High Street
Wailuku HI 96793 Wailuku, HI 96793
Re: Open Government Requirements During Emergency
Dear Mayor Victorino and Chair Lee,
I write you today regarding open government requirements during this COVID-19
emergency and County operations.
As you know the governor in his first Supplemental Proclamation, dated March 16 ,2020,
suspended the operation of certain open government laws Chapters 91, 92 and 92F, Haw. Rev. Stat.,
among others. He encouraged the use of technology to allow remote participation. The purpose of
the suspension was “in order for state and county agencies to more effectively provide emergency
relief and engage in emergency management functions, including, but not limited to, implementing
social distancing measures.” The governor did not suspend any provision of the Charter or the
constitution nor is he empowered to suspend the Charter or constitution by statute.
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. The proclamation did not suspend operation of the County Charter
or the state or federal constitutions.
Council's Duty to Provide Interactive Communications Access
Section 3-5(5) of the Charter imposes a duty upon the Council to provide interactive
communications access to all county council meetings and county council committee meetings for
residents of Hana, Lānaì, Molokaì and “other geographic areas as the council shall deem
appropriate and reasonable.” As the Charter defines such access to “include, but not be limited to,
the ability of the public to testify, of council members to ask questions, and of the public to
respond to questions.” This obligation does not flow from Chapter 92, Haw. Rev. Stat. but from the
County Charter.
The proclamation itself qualified the suspension of Chapter 92, Haw. Rev. Stat. by stating:
“Boards shall consider reasonable measures to allow public participation consistent with social
distancing practices, such as providing notice of meetings, allowing submission of written testimony
on agendized items, live streaming meetings, and posting minutes of meetings online.”
While the Council has the discretion to limit interactive communications access to residents
of Hana, Lānaì and Molokaì, if the technology deployed does not make such distinctions it may be
better to allow all County residents to participate by interactive communications technology.
APPENDIX "B"
It does not appear that Section 4-2(6) of the Charter allows the Council to waive the
requirements for interactive communications access for emergency ordinances.
Budget Public Hearing
Section 9-4 of the Charter requires the Council to conduct a public hearing on the proposed
budget and capital program during the month of April. This obligation includes providing notice to
the public and allowing for interactive communications access. This obligation is independent of
Chapter 92, Haw. Rev. Stat. and must be satisfied in order to comply with the Charter's requirements
of openness and transparency in the budget process.
Access to Government Records
Unlike some state agencies, there have been no reports that County agencies have denied
reasonable access to government records during the emergency so far. The County must be
commended for the proactive and frank manner in which all branches have communicated regarding
government operations in this time of uncertainty.
There appears to be some misunderstanding of what Chapter 92F, Haw. Rev. Stat. does and
does not do. Chapter 92F, Haw. Rev. Stat. provides a uniform procedure by which a member of the
public may inspect and copy a government record as well as protect personal information. It does
not establish the right of members of the public to inspect and copy such records and it does not
independently establish a duty of an agency to provide access. Those rights and duties are
established by several constitutional provisions, the Charter as well as the common law.
The obligation to allow inspection and copying of county records, for example, is a duty
imposed by Section 13-9(1) of the Charter. Chapter 92F, Haw. Rev. Stat. merely created a uniform
procedure to facilitate access to such information. Suspending Chapter 92F, Haw. Rev. Stat. merely
suspends the uniform procedure by which to deal with record requests, it does not suspend the right
of the public to seek information or the duty of the government to provide it.
It seems sensible that to the extent agencies can follow the procedures set out in Chapter
92F, Haw. Rev. Stat., the agencies should do so to minimize confusion regarding longstanding
procedures for accessing government information. Requests by members of the media for matters
of public interest should be resolved expeditiously. Agencies should commit that any requests that
cannot be reasonably answered because of disruptions caused by the emergency will be answered
after the emergency.
Meetings of Board and Commissions
Section 13-9(2) of the Charter requires: “All meetings of boards and commissions shall be
that is accessible to the public.”
It does not appear that any board or commission has any business to conduct in furtherance
of emergency relief or emergency management functions that would necessitate any board or
commission meeting during the emergency. In light of the requirements for social distancing and the
logistics necessary to comply with this Charter provision, boards and commissions should not meet
during the emergency.
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 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.
Any administrative hearing that cannot “be held in another facility that is accessible to the
public” because of limitations related to social distancing, stay-at-home order, lack of access to
internet service, lack of assistance with using new technology, etc., cannot be conducted because of
the obligation imposed by the Charter.
Furthermore, the public and the media have a qualified right of access to administrative
proceedings adjudicative in nature under the First Amendment and the state constitution the same
as court proceedings. See Federal Maritime Commission v. South Carolina State Ports Authority, 535 US 751
(2001) (“the proceeding walks, talks, and squawks very much like a lawsuit and that its placement
within the Executive Branch cannot blind us to the fact that the proceeding is truly an adjudication.”
internal citations omitted) The caselaw is clear that the “rudiment of fair play” required by due
process mandate that administrative adjudications be “fair and open.” See Ohio Bell Tel. Co. v. Pub.
Utilities Commission of Ohio, 301 U.S. 292, 304-05 (1937)
This right of access can only be restricted if a particularized showing is established justifying
a denial of access in each particular case where access is denied:
1. Whether an open proceeding is substantially likely to prejudice another transcendent interest;

Richmond Newspapers v. Virginia, 448 U.S. 555, 581 (1980); Globe Newspaper v. Superior Court for
Norfolk County, 457 U.S. 596, 606-07 (1982)
2. If so, whether any alternative exists to avoid that prejudice without limiting public access; Press-
Enterprise Co. v. Superior Court of California (Press II), 478 U.S. 1, 14 (1986); Publicker Industries,
Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984).
3. If not, whether the limitation of access is narrowed (in scope and time) to the minimum
necessary; Press-Enterprise Co. v. Superior Court of California (Press I)., 464 U.S. 501, 510 (1984),
United States v. Antar, 38 F.3d 1348, 1362-63 (3d Cir. 1994)
4. Whether the limitation of access effectively avoids the prejudice it is intended to address. Globe
Newspaper, 457 U.S. at 610; In re Charlotte Observer, 882 F.2d 850, 854-55 (4th Cir. 1989).
This includes both the evidentiary part of a contested case proceeding as well as any conferences or
other hearings conducted before the reception of evidence.
The only transcendental interests implicated during this emergency are relief efforts and
emergency management functions. Unless a specific finding that a particular contested case must
proceed to support relief efforts or emergency management functions, a contested case proceeding
must be suspended until after the emergency to ensure that the proceeding is fair and open.
Scope of Emergency Rules
Emergency rules adopted by a mayor pursuant to Haw. Rev. Stat. 127A-25 only extend to
“the purpose of carrying out any provision of this chapter [127A].” Any lawful suspension of open
government laws only extend to providing relief and emergency management functions. They do
not expand or modify the powers assigned by the Charter to a particular body or officer and they do
not allow actions that are prohibited during ordinary time to be done simply because of the fact that
the county is in a state of emergency.
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
In sum, I thank the County of Maui for its efforts in supporting transparency in government
operations and the formation of policy during this time of great uncertainty. I ask that the County
be mindful of its duties and obligations under the Charter and Constitution by ensuring appropriate
access to meetings and records as required by law and by postponing those meetings and
adjudications that are not required for the relief effort or emergency management functions until
the end of the state of emergency.
Finally, I strongly encourage the County to consider adopting the interim procedures and
standards relating to open meetings and government record requests proposed by Common Cause
Hawai'i and the Civil Beat Law Center for the Public Interest as guidance for county agencies during
the emergency.
Please do not hesitate to call or write me if you have any questions. I am happy to discuss
this matter further to assist the County.
Very truly yours,

LAW OFFICE OF LANCE D. COLLINS
LANCE D. COLLINS
c: Members, Maui County Council

Moana Lutey, Corporation Counsel
David Raatz, Supervising Legislative Attorney
Michele McLean, Planning Director
Jeffrey Pearson, Water Supply Director
Georgette Tyau, Acting Liquor Control Director
Sandy Ma, Common Cause Hawai'i
Brian Black, Civil Beat Law Center for the Public Interest
Mateo Caballero, ACLU of Hawai'i
SULLIVAN MEHEULA LEE
A Limited Liability Law Partnership
WILLIAM MEHEULA (2277)

NATASHA L.N. BALDAUF (9620)
Pacific Guardian Center, Makai Tower
733 Bishop Street, Suite 2900
Honolulu, Hawaiì 96813
Telephone: (808) 599-9555
Facsimile: (808) 533-2467
meheula@smlhawaii.com; baldauf@smlhawaii.com
Attorneys for
BRE ICONIC GWR OWNER, LLC

COUNTY OF MAUI
STATE OF HAWAII
In the Matter of the Applications for: DOCKET NO. SM1 2018/0011

(PD1 2019/001, PD2 2018/0003)
ORDER NO. 1 — DENYING
To obtain a Special Management Area Use INTERVENORS' MA.- LAMA KAKANILUA,
Permit, Step 1 Planned Development Approval PELE DEFENSE FUND, AND
and Step 2 Planned Development Approval for HOÒPONOPONO 0 MAKENA'S MOTION
the Grand Wailea Resort to transfer "H-2 TO SUSPEND CONTESTED CASE
Hotel" and "OS Open Space" zoning PROCEEDINGS; PREHEARING
designation areas, update facilities and create CONFERENCE DECISIONS
224 new guest room units, renovate and
expand the resort swimming pool and
restaurant facilities, expand the parking
structure from three to five levels to provide
316 additional parking stalls, removal of the
Seaside Chapel Structure, addition of
approximately 30 public beach parking stalls,
and related landscape, utility, and infrastructur
improvements at 3850 Wailea Alanui Drive,
Wailea, Island of Maui, Hawai'i, TMK (2) 2-1-
008:109.
APPENDIX "C"
APPENDIX "D"
the health and safety of everyone involved. For example, any discovery complications
created by Covid-19 should be addressed at the Discovery Conference scheduled for
April 29, 2020 at 9am.
B. A Discovery Conference to address any issues will be held on April 29, 2020 at 9am.
Any Discovery Motions should be submitted by April 22, 2020, close of business.
C. All motions brought by the parties shall consist of a memorandum of ten (10) pages or
less. Exhibits referenced in a motion must be identified in the body of the memo as well
as the specific, relevant pages that support a statement. Exhibits not referenced in a
motion may be considered superfluous. For example, Maui Planning Department
Report and Recommendation (MP R&R) dtd May 28, 2019, p. 112. If a party needs to
have more pages or exhibits, they may request relief from this Order.
D. A different program of video conferencing will be used to allow Intervenors to call in if a
computer is not available. Advance notice of the video conference will be provided.
E. Electronic signatures may be used on documents transmitted by email to the other
parties. Scanned documents with the signature may also be sent to other parties as
applicable.
DATED: Maui, Hawaii, N - /*LI 2 020

L. H. JOESTI G
HEARING OF ICER
In the Matter of the Applications for: BRE ICONIC GWR OWNER, LLC
APPENDIX "E"
April 11, 2020. Although the Motion to Clarify was filed before an Order was issued, it is
also treated as a Motion for Reconsideration because it seeks changes to the
Prehearing Conference Order.
Upon careful review of the Motion to Clarify and the supporting and opposing
memoranda, declarations, exhibits, and with good cause appearing therefor, the Motion
to Clarify is hereby DENIED. The Motion is denied on the following grounds:
A contested case hearing is a process governed by Chapter 91, HRS, entitled
"Administrative Procedures," and not governed by Chapter 92 entitled "Public Agency
Meetings and Records." A contested case is a proceeding in which the legal rights,
duties, or privileges of specific parties are determined after an opportunity for an agency
hearing. HRS § 91-1. Chapter 91, HRS, does not require an agency hearing to be
open to the public.
The Motion to Clarify provided no new evidence and/or argument on why
Chapter 91 does not apply to a contested case hearing and/or why an agency hearing
must be open to the public. "[T]he purpose of a motion for reconsideration is to allow
parties to present new evidence and/or arguments that could not have been presented
during an earlier adjudicated motion." Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74
Haw 85, 114, 839 P.2d 10, 27 (1992). "[A] motion for reconsideration is not [the] time to
relitigate old matters." Id. (See, e.g. Gossinger v. AOAO of Regency Ala Wai, 73 Haw
412, 425-426, 835 P.2d 627, 634 (Haw. 1992); Briggs v. Hotel Corp. of the Pac., 73
Haw. 276, 287 n. 7, 831 P.2d 1335, 1342 n. 7 (1992)); K.M. Young & Assocs., Inc. v.
Cieslik, 4 Haw. App. 657, 666, 675 P.2d 793, 801 (1983).
May 19, 2020
Linden Joesting, Esq. Lawrence Carnicelli, Chair

Hearings Officer c/o Michele McLean, Commission Clerk
Maui Planning Commission Maui Planning Commission
2200 S. Main Street 2200 S. Main Street
Wailuku HI 96793 Wailuku, HI 96793
<atty4vets@gmail.com> <Michele.McLean@co.maui.hi.us>
Re: Media Demand to Reopen Proceedings to Public In the Matter of the Application for BRE
ICONIC GWR OWNER LLC, To obtain a Special Management Area Use Permit, Step 1
Planned Development Approval, and Step 2 Planned Development Approval for the Grand
Wailea Resort , Docket No. SM1 2018/0011 (PD1 2019/001, PD2 2018/0003)
Dear Hearings Officer Joesting and Chair Carnicelli,
I represent three media entities: Victor Gregor Limon, a Honolulu-based independent

journalist and geographer, The Hawai'i Independent, an online newspaper established in 2008, and
Disappeared News, an online investigative reporting blog established in 2003, collectively “the
Media.”
The Media have reviewed materials in the above-mentioned case that evinces a decision to
close the proceedings to the public and the conducting of prehearing proceedings without
appropriate notice or access being given the press or the public.
In summary, the Media demand that the proceedings for the above-mentioned contested
case be re-opened to the public without qualification or delay. Article I, Section 4 of the Hawai'i
State Constitution and the First Amendment to the United States Constitution, as well as the
requirements of the Charter of the County of Maui, impose upon the Maui Planning Commission
and its hearings officers, an obligation to conduct contested case proceedings including prehearing
conferences in a manner accessible the public and the press.
Section 13-9(2) of the Charter requires: “All meetings of boards and commissions shall be
that is accessible to the public.” Chang v. Planning Commission of Maui County, 64 Haw. 431, 643 P.2d 55
APPENDIX "F"
(1982) (“the Maui County Charter, in § 13-9, has long prohibited boards and commissions from
taking any official action 'except at a meeting open to the public in accordance with the law.' The
charter does not provide exceptions to this mandate, nor, again, have we found any in the network
of laws affecting SMA use permit application proceedings.”)
These legal obligations cannot be dispensed with by merely delegating the powers of a board
or a commission to an individual. The key requirement is that county business be conducted in a
manner accessible to the public.
This obligation has not been suspended by any emergency proclamation and there is no
authority in the Emergency Management Act, Chapter 127A, HRS, to suspend provisions of the
Constitution or the Charter, in any event.
All of the Supplemental Proclamations 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
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 or other laws. See Town v. Land Use Commission,
55 Haw. 538, 524 P.2d 84 (1974) (“HAPA was adopted to 'provide a uniform administrative
procedure for all state and county boards, commissions, departments or offices which would
encompass the procedure of rule making and the adjudication of contested cases”) The
proclamation only suspends the uniform procedures. It does not and cannot suspend the obligations
imposed by the Constitution or the Charter for due process or public access.
I have previously written to the Mayor, on April 6, 2020, that any administrative hearing that
cannot “be held in another facility that is accessible to the public” because of limitations related to
social distancing, stay-at-home order, lack of access to internet service, lack of assistance with using
new technology, etc., cannot be conducted because of the obligation imposed by the Charter. But to
the extent that contested cases are nevertheless conducted, they must be open and accessible to the
public and the press.
The public and the media have a qualified right of access to administrative proceedings
adjudicative in nature under the First Amendment and the state constitution the same as court
proceedings. See Federal Maritime Commission v. South Carolina State Ports Authority, 535 US 751 (2001)
(“the proceeding walks, talks, and squawks very much like a lawsuit and that its placement within the
Executive Branch cannot blind us to the fact that the proceeding is truly an adjudication.” internal
citations omitted) The caselaw is clear that the “rudiment of fair play” required by due process
mandate that administrative adjudications be “fair and open.” See Ohio Bell Tel. Co. v. Pub. Utilities
Commission of Ohio, 301 U.S. 292, 304-05 (1937)
This right of access can only be restricted if a particularized showing is established justifying
a denial of access in each particular case where access is denied:
1. Whether an open proceeding is substantially likely to prejudice another transcendent interest;
Richmond Newspapers v. Virginia, 448 U.S. 555, 581 (1980); Globe Newspaper v. Superior Court for
Norfolk County, 457 U.S. 596, 606-07 (1982)
2. If so, whether any alternative exists to avoid that prejudice without limiting public access; Press-
Enterprise Co. v. Superior Court of California (Press II), 478 U.S. 1, 14 (1986); Publicker Industries,
Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984).
3. If not, whether the limitation of access is narrowed (in scope and time) to the minimum
necessary; Press-Enterprise Co. v. Superior Court of California (Press I)., 464 U.S. 501, 510 (1984),
United States v. Antar, 38 F.3d 1348, 1362-63 (3d Cir. 1994)
4. Whether the limitation of access effectively avoids the prejudice it is intended to address. Globe
Newspaper, 457 U.S. at 610; In re Charlotte Observer, 882 F.2d 850, 854-55 (4th Cir. 1989).
This includes both the evidentiary part of a contested case proceeding as well as any conferences or
other prehearing proceedings conducted before the reception of evidence.
The only transcendental interests implicated during this emergency are relief efforts and
emergency management functions. Unless a specific finding that a particular contested case must
proceed to support relief efforts or emergency management functions, a contested case proceeding
should be suspended until after the emergency to ensure that the proceeding is fair and open.
“[G]etting the administrative work of Maui County done” is not a transcendental interest especially
when to do so would put fundamental interests in jeopardy. However, to the extent a contested case
proceeding is moved forward anyways, the public and the press have a right to observe the conduct
of these proceedings.
Under the test developed by the Hawai'i Supreme Court in Oahu Publications v. Ahn, 133 Haw.
482, 331 P.3d 460 (2014), the right of access is based upon two complementary considerations: logic
and experience:
1. Experience: “whether the place and process have historically been open to the press and
general public because a tradition of accessibility implies the favorable judgment of experience.” Id.
(internal citations omitted)
2. Logic: “whether public access plays a significant positive role in the functioning of the
particular process in question.” Id. (internal citations omitted)
Hawai'i has recognized a long tradition of public access to judicial proceedings, “firmly
embedded in our system of jurisprudence" as a "general policy of open trials.” Id quoting Gannett
Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54 (1978). Judicial proceedings “are open to
the public .... The fact that they are open serves as a safeguard of the integrity of our courts.” Id
quoting State v. Hashimoto, 47 Haw. 185, 200, 389 P.2d 146, 155 (1963). Likewise, administrative
adjudications have a long history of public access.
The Commission's Rules themselves state its meetings will follow the requirements of
Chapter 92, HRS, and be public except when an executive session under Chapter 92, HRS is allowed.
Even if the governor suspended Chapter 92, HRS, the Commission Rule adopted the standards
contained therein independently and therefore the suspension of Chapter 92, HRS obligations does
not suspend the discrete rule adopting those standards as an independent rule of procedure. And it
certainly doesn't suspend the long tradition and experience of open proceedings.
The logic prong of the Oahu Publications test is analyzed by looking at the six societal interests
advanced by holding proceedings open to the public:
(1) public access promotes informed discussion of governmental affairs by providing the
public with a more complete understanding of the judicial system, serving an “educative” interest
(2) public access gives assurance that the proceedings were conducted fairly to all concerned
thereby promoting a perception of fairness.
(3) public access provides significant community therapeutic value because it provides an
outlet for community concern, hostility, and emotion.
(4) public access serves as a check on the misconduct of participants by exposing the
adjudicatory process to public scrutiny, thus discouraging decisions based on secret bias or partiality
(5) public access enhances the performance of all involved, and
(6) public observation of proceedings will discourage perjury because members of the
public who might be able to contradict false testimony will not learn of that testimony unless the
proceedings are open to the public.
All of these elements are present in this matter. The SMA permit application and the
intervention have received widespread media attention not just in Maui but across the state. Access
to this proceeding by the press and the public furthers each societal interest of the logic prong of
the Oahu Publications test for access.
“[G]etting the administrative work of the County done” does not justify closing this case to
the public and the Media therefore demand that an order be issued re-opening the proceedings to
the public and that the conducting of any further proceedings or making of any further rulings be
suspended until such an order has issued.
If further proceedings continue in a closed manner, the Media will take all appropriate steps
available to them to rectify this injury to public access.
Very truly yours,
LANCE D COLLINS
Attorney for Victor Gregor Limon,
The Hawai'i Independent and Disappeared News
c: William Meheula, Esq. (for Applicant)

Bianca Isaki, Esq. (for Intervenors)
Kristin Tarnstrom, Deputy Corporation Counsel (for the Planning Director)
APPENDIX “G”
Maui News, January 29, 2020, A1 & A5
APPENDIX "H"
Honolulu Advertiser, May 7, 1990, A3
APPENDIX "I"
Honolulu Star-Bulletin, December 23, 1996, A4
APPENDIX "J"
Honolulu Advertiser, September 13, 2000, B1 & B4
APPENDIX "K"
Honolulu Advertiser, April 15, 2004, A1 & A15
APPENDIX "L"
Honolulu Advertiser, July 10, 2007, A4
APPENDIX "M"
Honolulu Star-Advertiser, February 10, 2020, B1 & B3
APPENDIX "N"
I HEREBY CERTIFY THAT a true and correct copy of the above was duly served
upon the following parties via JEFS protocol or by depositing the same in the U.S. Mail,
postage pre-paid on this date as follows:
MOANA LUTEY
BIANCA ISAKI KRISTIN TARNSTROM
Law Office of Bianca Isaki Department of the Corporation Counsel
1720 Huna St., 401B Kaulana o Maui Building
Honolulu, Hawai‘i 96817 200 S. High Street, 3rd Floor
bianca.isaki@gmail.com Wailuku, Hawai‘i 96793
moana.lutey@mauicounty.gov
Attorney for Respondents/Intervenors Kristin.Tarnstrom@co.maui.hi.us
MĀLAMA KAKANILUA, HO‘OPONOPONO
O MĀKENA, PELE DEFENSE FUND Attorneys for Respondnet
MAUI PLANNING COMMISSION
WILLIAM MEHEULA AND DIRECTOR OF THE
Sullivan, Meheula, and Lee, LLLP DEPARTMENT OF PLANNING,
Pacific Guardian Center, Makai Tower COUNTY OF MAUI
733 Bishop Street, Suite 2900
Honolulu, Hawai‘i 96813 LINDEN H. JOESTING
meheula@smlhawaii.com P.O. Box 367
Kula, Hawai‘i 96790
Attorney for Respondent/Applicant email: attys4vets@gmail.com
Respondent/ Hearing Officer,
MAUI PLANNING COMMISSION
___/s/ Lance D. Collins________________

LANCE D COLLINS

Petition For Writ of Mandamus Re Maui Planning Commission

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Petition For Writ of Mandamus Re Maui Planning Commission

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Electronically Filed

DISAPPEARED NEWS, THE HAWAI‘I ) Maui Planning Commission Dkt. No.

PETITION FOR WRIT OF MANDAMUS

Attorney for Petitioners

Petitioners DISAPPEARED NEWS, THE HAWAI‘I INDEPENDENT, and VICTOR

___/s/ Lance D. Collins_______________

Constitutional, County Charter, and statutory provisions

Hawai'i Constitution, article I, § 4 ……………………………………………………………… 3

Limon Decl. ¶12, Appendix “C.”

Limon Decl. ¶14, Appendix “E.”

A. Requested writ of mandamus is appropriately directed to the Commission.

1. The public has a qualified right of access to government proceedings.

DATED: Makawao, Hawai'i May 21, 2020

___/s/ Lance D. Collins_______________

DISAPPEARED NEWS, et al., ) Maui Planning Commission Dkt. No.

DECLARATION OF VICTOR GREGOR LIMON

DATED: Honolulu, Hawai'i May 21, 2020

67, and Rule 26 of the Hawai‘i Rules of Civil Procedure.

Intervenors’ objections to those procedures.

This motion is presented to clarify and object to prehearing procedures proposed by

information and ability to meet is restricted.

files on record in these proceedings.

DATED: Honolulu, Hawai‘i April 6, 2020

MEMORANDUM IN SUPPORT OF MOTION

Intervenors MąLAMA KAKANILUA, a domestic nonprofit corporation, PELE

DEFENSE FUND, a domestic nonprofit corporation, and HO‘OPONOPONO O MąKENA, an

unincorporated association (Intervenors) respectfully submit this Motion to Clarify Prehearing

Intervenors’ objections to those procedures.

This motion is presented to clarify and object to prehearing procedures proposed by

information and ability to meet is restricted.

March 23, 2020. Declaration of Counsel (Counsel Decl.) ¶2.

On March 16, 2020, the Governor issued a Supplementary Emergency Proclamation.1

ability to access information and confer with each other.

easier to schedule a firm hearing date then.”

On March 25, 2020, Applicant emailed a memorandum opposing Intervenors’ motion to

2020 to accommodate the Covid-19 shut-down.”

Intervenors’ motion to confirm suspension of proceedings. Intervenors’ counsel presented

Applicant’s requested discovery schedule would be adopted. Counsel Decl. ¶10.

Also at the prehearing conference, Intervenors’ counsel sought clarification of Applicant’s

Civil Procedure (HRCP). Counsel Decl. ¶11.

discovery conference. Counsel Decl. ¶12.

confirmed that date with Intervenors. Counsel Decl. ¶14.

community organizations. Counsel Decl. ¶13.

hear the audio component. Counsel Decl. ¶15.

In light of communication difficulties experienced during the prehearing teleconference,

recommendations to the Planning Commission.

Commission in their determination of the matter of the merits. MC §12-201-69(b).

that involve final determinations in the proceedings.

of making a final decision on the contested case.

exist in the Planning Commission’s MC chapter 12-201 or -202.

B. Applicant’s discovery request is inappropriate to these proceedings.

MC §12-201-67 permits discovery “where appropriate[.]” At the prehearing teleconference,

opportunity to respond to a finding that Applicant’s requested discovery is appropriate. Further,

pandemic prevent Intervenors from ascertaining this information.

organizations. It is unclear whether the attendance of Intervenors, as parties composed of many

DATED: Honolulu, Hawai‘i April 6, 2020

1. I am counsel for Intervenors MąLAMA KAKANILUA, a domestic nonprofit

corporation, PELE DEFENSE FUND, a domestic nonprofit corporation, and

HO‘OPONOPONO O MąKENA, an unincorporated association in the above entitled case.

intervenors who sought to attend the prehearing conference:

the provided web link.

presentations on Intervenors’ motion to confirm suspension of proceedings. Intervenors’ counsel

the Applicant’s requested discovery schedule would be adopted.

Civil Procedure (HRCP).

prior to the discovery conference.

are large community organizations.

_/s/ Lance D. Collins_____________

_/s/ Lance D. Collins_____________

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_/s/ Lance D. Collins______________