Bill Text: HI SR113 | 2010 | Regular Session | Introduced

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Bill Title: Sunshine Law; Judicial Report on Extent and Use of Boards

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2010-03-15 - (S) Referred to JGO. [SR113 Detail]

Download: Hawaii-2010-SR113-Introduced.html

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THE SENATE	S.R. NO.	113
TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII

SENATE RESOLUTION

 

 

REQUESTING THE JUDICIARY TO REPORT oN tHE USE AND EXTENT OF JUDICIARY BOARDS AND ASSOCIATED PUBLIC PaRTICIPATION.

 

 

                WHEREAS, the Sunshine Law, chapter 92, Hawaii Revised Statutes, was first passed in 1975 as H.B. No. 126 and Senate Stand. Com. Rep. No. 878, which addresses that bill states, in relevant part:

 

        "(6)  The judicial branch is specifically excluded from the operation of the bill in deference to the doctrine of "separation of powers."

 

        (7)   Quasi-judicial boards in exercise of adjudicatory functions are also specifically exempted because closed deliberation is traditional in quasi‑judicial proceedings."; and

 

     WHEREAS, the House Stand. Com. Rep. No. 485 (1975 House Journal) and Conf. Com. Rep. No. 34 (1975 House Journal) reports do not contain (with respect to H.B. No. 126) any similar language regarding "separation of powers"; and

 

     WHEREAS, the Senate Stand. Com. Rep. No. 878 notes that boards in the exercise of adjudicatory functions have traditionally closed deliberations; and

 

     WHEREAS, the judicial branch has both adjudicative and non‑adjudicative (administrative) functions; and

 

     WHEREAS, as described in the declaration of policy and intent of the Sunshine Law, "it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies -shall be conducted as openly as possible."; and

 

     WHEREAS, the Uniform Information Practices Act (UIPA or Open Records Law), chapter 92F, Hawaii Revised Statutes, defines "agency" to include the judicial branch but not "the non‑administrative functions of the courts of this State"; and

 

                WHEREAS, Senate Stand. Com. Rep. No. 2580 for H.B. No. 2002, Regular Session of 1988, addressed the inclusion of the Judiciary in the definition of "agency" by stating, "as under current law, the Legislature and Judiciary are also included", which Conf. Com. Rep. No. 112-88 further explained, in relevant part:

 

        "3.   Definitions. The bill includes the crucial definitions: the all-inclusive "government records" definition, the "personal records" definition taken from the current Chapter 92E, HRS, and a definition of "agency" which includes both the Legislature and the Judiciary.  The definition of "agency" excludes the "non-administrative records of the Judiciary."  The intent of this language is to preserve the current practice of granting broad access to the records and court proceedings.  The records of the Judiciary which will be affected by this bill are the administrative records."; and

 

     WHEREAS, the UIPA Open Records Law retains this distinction between adjudicatory and administrative functions of the Judiciary, requires that the administrative records of the Judiciary be subject to the UIPA Open Records law, does not infringe upon Judiciary's inherent adjudicatory powers, and has not been found to be unconstitutional; and

 

                WHEREAS, the Legislative Reference Bureau has studied other states' application of the Sunshine Law (or equivalents) and has reported that:

 

        "Research indicates that five states explicitly extend applicability of their state sunshine law or open meeting requirements to courts or judicial entities: Connecticut, Maryland, Missouri, Montana, and Nebraska.  Although expressed somewhat differently by each state, the open meeting applicability is generally limited in four of these states to the administrative functions or the exercise of rulemaking authority of the court.  Montana appears to apply its open meeting law only to the state supreme court, but apparently without limitation to administrative or rulemaking functions."; and

 

     WHEREAS, in the 2009 Regular Session, a bill was filed which proposed to exclude only the adjudicatory functions of the judicial branch from the Sunshine Law; and

 

                WHEREAS, S.B. No. 2029 and H.B. No. 1935, Regular Session of 2010, propose the following amendments to the Sunshine Law:

 

     (1)  Amends the definition of "board" in section 92-2, Hawaii Revised Statutes, to include the Judiciary and any entity created by court order;

 

     (2)  Amends section 92-6, Hawaii Revised Statutes, to clarify that the adjudicatory functions of the judicial branch are exempt from chapter 92 meeting requirements; and

 

     (3)  Ensures that Judicial branch boards are not subject to Executive branch oversight; and

 

     WHEREAS, the extent of the use of boards by the judicial branch as described under section 92-2, Hawaii Revised Statutes, is not clearly known; and

 

     WHEREAS, the effect of the above proposed amendments may require further understanding of the need for resources or other considerations; now, therefore,

 

                BE IT RESOLVED by the Senate of the Twenty-fifth Legislature of the State of Hawaii, Regular Session of 2010, that the Judiciary is requested to provide the Legislature with a report detailing the findings, recommendations, and resource requirements of implementing the above described Sunshine Law amendments, including specific information regarding:

 

     (1)  What judicial branch boards, as defined in the above described bills, exist, existed, or were established since January 1, 2001;

 

     (2)  How many meetings did each of the boards listed in paragraph (1) hold;

 

     (3)  For each board listed in paragraph (1), provide information on:

 

          (A)  The level of public participation (i.e. by a non‑judiciary, non-lawyer layperson) in meetings of the board, including by means of membership on the board (if any);

 

          (B)  Whether the board gives the public notice and an agenda for meetings; and

 

          (C)  Whether and how the board affords the public an opportunity to submit data or oral testimony to the board at its meetings;

 

     (4)  If the public is not noticed or allowed to participate in the board meetings, for each such board, list and explain who participates in the meetings and the reasons for excluding the public; and

 

     (5)  For each board listed in paragraph (1), provide the reports created by the board; and

 

                BE IT FURTHER RESOLVED that the Judiciary is requested to report its findings and recommendations to the Legislature no later than twenty days prior to the convening of the Regular Session of 2011; and

 

     BE IT FURTHER RESOLVED that certified copies of this Resolution be transmitted to the President of the Senate, Speaker of the House of Representatives, Chair of the Senate Committee on Human Services, Chair of the Senate Committee on Judiciary and Government Operations, Chair of the House Committee on Human Services, Chair of the House Committee on

Judiciary, Chief Justice of the Hawaii Supreme Court, and the Administrative Director of the Courts.

 

 

 

	OFFERED BY:	_____________________________

Report Title: 

Sunshine Law; Judicial Report on Extent and Use of Boards