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NO. CAAP-17-0000092

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JOHN THATCHER, Plaintiff-Appellant,

v.

HAWAII STATE PUBLIC CHARTER SCHOOL COMMISSION;

THOMAS HUTTON, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS EXECUTIVE DIRECTOR OF THE HAWAII STATE

PUBLIC CHARTER SCHOOL COMMISSION, Defendants-Appellees

and

DOE PERSONS 1-10; DOE PARTNERSHIPS 1-10;

DOE CORPORATIONS 1-10; ROE "NON-PROFIT"

CORPORATIONS 1-10; AND ROE GOVERNMENTAL

ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 15-1-1583)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)

Plaintiff-Appellant John Thatcher (Thatcher), Director

of Connections Public Charter School (Connections), appeals from

the "Order Granting Defendants Hawaii State Public Charter School

Commission's and Thomas Hutton's, Individually and in His

Official Capacity as Executive Director of the Hawaii State

Public Charter School Commission, Motion for Summary Judgment"

(Order Granting MSJ), "Final Judgment," and "Notice of Entry of 

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000092

18-JAN-2023

07:47 AM

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Final Judgment," all entered on February 1, 2017, by the Circuit

Court of the First Circuit (Circuit Court).1

Thatcher commenced a lawsuit against

Defendants-Appellees Hawaii State Public Charter School

Commission (Commission) and former Executive Director, Thomas

Hutton (Hutton), for alleged violations of Hawaii Revised

Statutes (HRS) chapter 92 (Sunshine Law). The Commission and

Hutton moved for and were granted summary judgment on the basis

that there was an open meeting after which Connections requested

a written decision and the Commission's issuance of that written

decision was an adjudicatory function exempt from the Sunshine

Law.2

On appeal Thatcher contends the Circuit Court: (1)

"clearly erred" in finding that there was an open meeting, a

decision was made in March 2015, Connections requested a written

decision per the terms of the State Public Charter School

Contract between the Commission and Connections (Charter

Contract), and the individual Defendants were acting as

Commission board members; and (2) was wrong as a matter of law to

conclude that the issuance of the written decision was an

adjudicatory function under the terms of the contract, not

subject to open meeting requirements under HRS § 92-6(a)(2), and

limited to Connections' specific request for a final decision.

This case concerns Connections' use of a Department of

Education (DOE) form for enrollment in public schools as its

1 The Honorable Virginia L. Crandall presided.

2 See HRS § 92-6 (2012), providing, in part: 

§92-6 Judicial branch, quasi-judicial boards and

investigatory functions; applicability. (a) This part shall

not apply:

....

(2) To adjudicatory functions exercised by a board

and governed by sections 91-8 and 91-9, or

authorized by other sections of the Hawaii

Revised Statutes.

(Emphases added.)

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application form. The Commission determined that the enrollment

form included discriminatory questions inappropriate at the

application stage that would violate Hawai#i law.3

For the reasons that follow, we resolve Thatcher's

assertions of error and affirm.

(1) In his first assertion of error, Thatcher argues

that the Circuit Court was "clearly erroneous" in finding (at the

summary judgment hearing)4 that:

(a) "There was an open meeting. A decision was made in

March. After that open meeting, Connections requested a written

decision pursuant to the terms of the contract."

(b) "the individual Defendants were acting as Board

members[.]"

We first note that the clearly erroneous standard does

not apply. Rather, because we are reviewing the Circuit Court's

summary judgment ruling in favor of the Commission and Hutton, we

review de novo based on the applicable summary judgment standard. 

Ralston v. Yim, 129 Hawai#i 46, 55, 292 P.3d 1276, 1285 (2013)

(citing First Ins. Co. of Hawai#i v. A & B Props., Inc., 126

Hawai#i 406, 413, 271 P.3d 1165, 1172 (2012)). 

Summary judgment is appropriate if the pleadings,

depositions, answers to interrogatories and admissions on

file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the

3 The Commission determined the questions in the DOE enrollment form

were inappropriate at the application stage because they can be used to

discriminate against applicants where, unlike DOE public schools, public

charter schools are not required to accept all students that apply.

4 Contrary to Thatcher's characterization of the Circuit Court's

actions, the Circuit Court did not issue findings of fact. Instead, after

argument by the parties, the Circuit Court verbally granted the Commission's

motion for summary judgment, stating at the hearing: 

. . . For the reasons just stated by Mr. Kuwabe, the Court

grants the motion.

There was an open meeting. A decision was made in March. 

After that open meeting, Connections requested a written decision

pursuant to the terms of the contract. The issuance of that

written decision was an adjudicatory function. It was pursuant to

the terms of the contract. It is not subject to the open meetings

pursuant to 92-6(a)(2). It's an adjudicatory function exercised by

the board and it was a decision limited to the specific

application being made by Connections.

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moving party is entitled to judgment as a matter of law. A

fact is material if proof of that fact would have the effect

of establishing or refuting one of the essential elements of

a cause of action or defense asserted by the parties. The

evidence must be viewed in the light most favorable to the

non-moving party. In other words, we must view all of the

evidence and inferences drawn therefrom in the light most

favorable to the party opposing the motion.

Id. at 55-56, 292 P.3d at 1285-86 (citation and brackets

omitted).

Further, the following burden-shifting paradigm

applies:

The burden is on the party moving for summary judgment

(moving party) to show the absence of any genuine issue as

to all material facts, which, under applicable principles of

substantive law, entitles the moving party to judgment as a

matter of law. This burden has two components.

First, the moving party has the burden of producing support

for its claim that: (1) no genuine issue of material fact

exists with respect to the essential elements of the claim

or defense which the motion seeks to establish or which the

motion questions; and (2) based on the undisputed facts, it

is entitled to summary judgment as a matter of law. Only

when the moving party satisfies its initial burden of

production does the burden shift to the nonmoving party to

respond to the motion for summary judgment and demonstrate

specific facts, as opposed to general allegations, that

present a genuine issue worthy of trial.

Second, the moving party bears the ultimate burden of

persuasion. This burden always remains with the moving party

and requires the moving party to convince the court that no

genuine issue of material fact exists and that the moving

party is entitled to summary judgment as a matter of law.

Id. at 56–57, 292 P.3d at 1286–87 (quoting French v. Hawaii Pizza

Hut, Inc., 105 Hawai#i 462, 470, 99 P.3d 1046, 1054 (2004)).

(a) The crux of Thatcher's first argument is that the

Circuit Court overextended the application of the Sunshine Law's

exemption for adjudicatory functions, and that the Commission and

Hutton instead engaged in unlawful rulemaking that was contrary

to the spirit of the Sunshine Law.

The Sunshine Law is based on a policy 

"that the formation and conduct of public policy—the

discussions, deliberations, decisions, and action of

governmental agencies—shall be conducted as openly as

possible." HRS § 92-1. The Sunshine Law implements

this policy by establishing the presumption that all

government board meetings will be open to the public. 

See HRS § 92-3 ("Every meeting of all boards shall be

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open to the public and all persons shall be permitted

to attend any meeting unless otherwise provided in the

constitution or as closed pursuant to sections 92-4

and 92-5.").

Civ. Beat L. Ctr. for the Pub. Int., Inc. v. City and Cnty. of

Honolulu, 144 Hawai#i 466, 476, 445 P.3d 47, 57 (2019). The

Sunshine Law reflects the Legislature's concern with balancing

public access to board meetings and the board's continued ability

to effectively conduct its business. H. Stand. Comm. Rep. No.

889, in 1985 House Journal, at 1424. 

As noted above, HRS § 92-6 provides that a board is

exempt from the Sunshine Law when exercising its adjudicatory

functions pursuant to sections of HRS chapter 91 or as authorized

by other Hawai#i statutes. Under HRS § 302D-5 (Supp. 2014),5

which governs public charter schools, the Commission is

responsible for, among other things, "[m]onitoring, in accordance

with charter contract terms, the performance and legal compliance

5 HRS § 302D-5 provides, in relevant part:

§302D-5 Authorizer powers, duties, and liabilities.

(a) Authorizers are responsible for executing the following

essential powers and duties:

(1) Soliciting and evaluating charter applications;

(2) Approving quality charter applications that meet

identified educational needs and promote a

diversity of educational choices;

(3) Declining to approve weak or inadequate charter

applications;

(4) Negotiating and executing sound charter

contracts with each approved charter applicant

and with existing public charter schools;

(5) Monitoring, in accordance with charter contract

terms, the performance and legal compliance of

public charter schools; and

(6) Determining whether each charter contract merits

renewal, nonrenewal, or revocation.

(b) An authorizer shall:

....

(2) Be responsible for and ensure the compliance of

a public charter school it authorizes with all

applicable state and federal laws, including

reporting requirements; ....

(c) An authorizer shall have the power to make and

execute contracts and all other instruments necessary or

convenient for the exercise of its duties and functions

under this chapter.

(Emphases added.) 

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of public charter schools[,]" and "[d]etermining whether each

charter contract merits renewal, nonrenewal, or revocation[,]"

and shall "[b]e responsible for and ensure the compliance of a

public charter school it authorizes with all applicable state and

federal laws[.]" In turn, pursuant to the applicable Charter

Contract, Connections "shall comply with its admission policies

and procedures as approved by the Commission." 

Under the Charter Contract, Connections is also

obligated to:

make all student recruitment, admissions, enrollment,

and retention decisions in a nondiscriminatory manner

and without regard to race, color, ethnicity, national

origin, religion, sex, sexual orientation, marital

status, income level, academic or athletic ability,

disability, need for special education services, or

lack of proficiency in the English language.

Here, although Thatcher disputes that there was an open

meeting, the Commission and Hutton submitted evidence

establishing an open meeting and Thatcher failed to submit

contrary evidence. In support of the motion for summary judgment

(MSJ), Hutton submitted a declaration attaching the Notice of

Meeting for the open meeting on February 26, 2015 (February

Meeting) held by the Commission's Performance and Accountability

Committee (Committee). He also submitted minutes from the

February Meeting during which the Committee discussed and

conditionally approved Connections' admissions policy upon

modification of the DOE SIS-10W, the DOE enrollment form at issue

in this case. Hutton's declaration also attached a General

Business Meeting Notice of Meeting for the March 12, 2015 open

meeting (March Meeting) held by the Commission, a Recommendation

Sheet from Hutton to the Commission recommending conditional

approval of Connections' admissions policy, "provided the school

uses a modified version of the DOE Enrollment form as its

application form[,]" and minutes from the March Meeting noting

that the Commission had unanimously passed the recommendation

from the February Meeting and the Recommendation Sheet. 

Consequently, for purposes of admissions, Connections was

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required to remove from the DOE SIS-10W enrollment form questions

regarding McKinney-Vento eligibility,6 ethnicity, gender, and

language spoken by an applicant. 

The uncontested evidence further establishes that after

the open meeting in March 2015, Thatcher requested a final

decision on the use of the DOE enrollment form, pursuant to the

Charter Contract. Hutton's declaration attached a letter from

Thatcher to Hutton, dated March 13, 2015, the day after the

Commission conditionally approved Connections' admissions policy,

which stated:

Pursuant to section 14.7 of our Contract, Connections PCS

claims that a dispute between the Commission and Connections

PCS has arisen under and by virtue of this Contract. It has

not been resolved by mutual agreement. Connections PCS is

officially requesting a final decision concerning our use of

the DOE enrollment form with a no discrimination disclaimer

within 90 calendar days as provided for in Section 14.5 of

the Contract.

(Emphasis added.) Hutton's declaration also attached a

subsequent letter dated April 6, 2015, from Thatcher to the

Commission, again requesting a final decision pursuant to section

14.5 of the Charter Contract. Section 14.5 provides, in

pertinent part:

Any disputes between the Commission and the School

which arise under, or are by virtue of, this Contract

and which are not resolved by mutual agreement, shall

be decided by the full Commission in writing, within

90 calendar days after a written request by the School

for a final decision concerning the dispute[.]

Hutton also submitted a letter he wrote informing Thatcher that

although the Commission would not be placing the matter on the

agenda for another public meeting, prior to issuing a written

decision, the Commission would give Thatcher an opportunity to

submit a further written statement no later than May 11, 2015. 

6 The purpose of the McKinney-Vento Homeless Assistance Act of 1987,

reauthorized in 2002 as part of the No Child Left Behind Act, is to "ensure

that each child of a homeless individual and each homeless youth has equal

access to the same free, appropriate public education, including a public

preschool education, as provided to other children and youths." Nat'l L. Ctr.

on Homelessness & Poverty, R.I. v. New York, 224 F.R.D. 314, 318 (E.D. N.Y.

2004) (quoting 42 U.S.C. § 11431 (2004)).

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Thatcher responded with a letter to the Commission stating his

concern that the matter should be placed on a Commission agenda

for another public meeting.

Catherine Payne (Payne), chairperson of the Commission,

submitted a declaration attached to the MSJ, which stated that on

May 14, 2015, the Commission, during a closed mid-day break from

its general meeting, reviewed Thatcher's request for a final

decision.7 The Commission issued the Final Written Decision the

following day, which "affirm[ed] in writing its decision of March

12, 2015, conditionally approving Connections' admissions policy

and practices, provided that the school agree to use as its

application form a modified version of the DOE [SIS-10W]

enrollment form."8 

Given the uncontested evidence, there is no genuine

issue of material fact that there was an open meeting, a decision

was made in March 2015, and Thatcher requested a Final Written

Decision pursuant to the Charter Contract. Thus, the Circuit

Court did not err in this regard.

(b) Thatcher also contends that the Circuit 

Court was clearly erroneous "in finding that the individual

7 In particular, Payne stated that the Commission reviewed the

following in its closed meeting: 

The Commission's prior deliberations on Connections' application

form;

The submittals, i.e., the Recommendation Sheets for the meetings

of both the full Commission and the Committee on Performance and

Accountability;

The correspondence between Mr. Thatcher and the Commission on

Connections' application form; and

The Commission's prior consultation with its Deputy Attorney

General regarding Connections' application form.

8 Thatcher also asserts that the Commission intentionally violated the

Sunshine Law by "already [making] a decision, in private email communications

[that occurred prior to the Final Written Decision]." Thatcher appears to

argue that these communications should have occurred publicly pursuant to the

"public notice and testimony requirements of [HRS] Chapters 91 and 92[.]"

However, the email correspondence Thatcher references occurred prior to the

Final Written Decision and was pertinent to addressing Thatcher's request for

a final decision. Given our conclusion infra that the Circuit Court properly

determined the Commission's decision was an adjudicatory function, this

argument is without merit.

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Defendants were acting as Board members[.]"9 Thatcher fails to

clearly cite where in the record this alleged error occurred or

present a clear argument. However, we address his contention to

the extent we can discern it. See Marvin v. Pflueger, 127

Hawai#i 490, 496, 280 P.3d 88, 94 (2012). At best, it appears

Thatcher is referring to the Circuit Court's conclusion at the

summary judgment hearing that "the board" exercised its

adjudicatory function when it made its decision regarding

Connections' application form. We interpret Thatcher's point of

error as an attempt to discredit the Commissioners' status as

board members to invalidate the Final Written Decision. However,

the only individual defendant named in this case is Hutton, who

is the former Executive Director of the Commission, not a

Commissioner. Therefore, this argument is without merit.

(2) In his second point of error, Thatcher contends the

Circuit Court was wrong as a matter of law to conclude at the

summary judgment hearing that:

[t]he issuance of that written decision was an

adjudicatory function. It was pursuant to the terms

of the contract. It is not subject to the open

meetings pursuant to 92-6(a)(2). It's an adjudicatory

function exercised by the board and it was a decision

limited to the specific application being made by

Connections.

As noted above, we will review the Circuit Court's summary

judgment ruling de novo.

Thatcher asserts that the Commission and Hutton engaged

in unlawful rulemaking without a public hearing pursuant to HRS

chapter 91, the Hawai#i Administrative Procedures Act. We thus

address whether the Commission's issuance of the Final Written

Decision was rulemaking or adjudication.

"Hawai#i appellate courts have typically discussed the

meaning of the general definition of 'rule' in cases where there

is a question of whether the agency action is legislative or 

9 As noted above, the Circuit Court did not issue findings of fact.

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adjudicative." Green Party of Hawaii v. Nago, 138 Hawai#i 228,

237-38, 378 P.3d 944, 953-54 (2016) (citations omitted). 

Rulemaking is the process by which an agency lays down

new prescriptions to govern the future conduct of

those subject to its authority; adjudication is the

process by which the agency applies either law or

policy, or both, to the facts of a particular case.

Rulemaking is essentially legislative in nature, not

only because it operates in the future, but also

because it is concerned largely with considerations of

policy. Adjudication, conversely, is concerned with

the determination of past and present rights and

liabilities. Typically, there is involved a

determination as to whether past conduct was unlawful,

so that the proceeding is characterized by an

accusatory flavor and may result in disciplinary

action.

Shoreline Transp., Inc. v. Robert's Tours and Transp., Inc., 70

Haw. 585, 591, 779 P.2d 868, 872 (1989) (emphasis added)

(citations and internal quotation marks omitted) (format

altered). 

We agree with the Circuit Court's determination that

the Commission's issuance of the Final Written Decision was an

adjudication, not rulemaking, and is thus exempt from the

Sunshine Law. First, Thatcher framed his disagreement with the

Commission's decision as a "dispute" between the Commission and

Connections that arose under the Charter Contract, evidenced by

the letter he wrote to the Commission requesting a final decision

pursuant to section 14.5 of the Charter Contract. Thatcher

reiterated this point in his letter to the Office of Information

Practices, which he attached to his declaration in opposition to

the MSJ. This discredits Thatcher's argument that the

Commission's Final Written Decision embodied a policy change. 

Second, the Commission's Final Written Decision addressed

Connections' specific use of the DOE SIS-10W enrollment form in

its application process, as the Commission is responsible for

ensuring that all charter schools comply with state and federal

laws.10 HRS § 302D-5. Third, Connections' failure to comply

10 The Final Written Decision expressly noted that Connections could

obtain "[t]he desired information . . . during the post-admission enrollment

phase." (Emphasis added.)

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with the Commission's directive in the Final Written Decision

would render Connections in violation of the Charter Contract,

and subject to disciplinary action. 

In issuing the Final Written Decision, the Commission

essentially applied law or policy, or both, to the facts of this

particular case, which is an adjudicative function. Shoreline

Transp., 70 Haw. at 591, 779 P.2d at 872. Furthermore, the

Performance and Accountability Committee, through the

Recommendation Sheet, advised that Connections' failure to modify

the DOE SIS-10W enrollment form would subject the school to

disciplinary action pursuant to the Charter Contract. See id.

("Typically, there is involved a determination [in adjudication]

as to whether past conduct was unlawful, so that the proceeding

is characterized by an accusatory flavor and may result in

disciplinary action.") (citation omitted). The circumstances

which led to the Commission's Final Written Decision clearly

reflect that the Commission was exercising its adjudicatory

function regarding Connections' use of the DOE SIS-10W enrollment

form in its application process. Therefore, we conclude that the

Circuit Court did not err in determining that the Commission's

Final Written Decision constituted an adjudicatory function

exempt from the Sunshine Law.

Finally, the record does not support Thatcher's

contention that the Circuit Court ignored the Commission's

alleged bias against him. "Administrators serving as

adjudicators are presumed to be unbiased. The presumption can be

rebutted by a showing of disqualifying interest, either pecuniary

or both[.] But the burden of establishing a disqualifying

interest rests on the party making the assertion." Sifagaloa v.

Bd. of Trs. of Emps'. Ret. Sys. of State of Hawaii, 74 Haw. 181,

192, 840 P.2d 367, 372 (1992) (citations and internal quotation

marks omitted) (format altered). Thatcher asserts that the

Commissioners' comments in email correspondence, which were

attached to his declaration, evidenced a lack of impartiality,

for example: "Wow so much work for one problem child[;]" "Talked

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to Mitch about some of our fun. He may be enough to take care of

Thatcher all by himself[;]" and Hutton characterized Thatcher's

email as "fan mail." In our view, these comments — though

sarcastic and unnecessary — do not evidence a disqualifying

interest, or a "direct, personal, pecuniary interest" in the

Commissioners' decision. Id. at 192, 840 P.2d at 372 (citation

omitted). Moreover, the Final Written Decision does not reflect

a failure to be impartial or unbiased towards Thatcher. Thus,

Thatcher fails to overcome the presumption that the Commissioners

were not biased.

Therefore, IT IS HEREBY ORDERED that the "Order

Granting Defendants Hawaii State Public Charter School

Commission's and Thomas Hutton's, Individually and in His

Official Capacity as Executive Director of the Hawaii State

Public Charter School Commission, Motion for Summary Judgment,"

the "Final Judgment," and "Notice of Entry of Final Judgment,"

entered on February 1, 2017, by the Circuit Court of the First

Circuit, are affirmed.

DATED: Honolulu, Hawai#i, January 18, 2023.

On the briefs:

Ted H.S. Hong, 

for Plaintiff-Appellant

Kunio Kuwabe,

Holly T. Shikada,

Deputy Attorneys General,

for Defendants-Appellees

/s/ Lisa M. Ginoza

Chief Judge

/s/ Karen T. Nakasone

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge

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