Thatcher v. Hawaii State Public Charter School Commission

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-JAN-2023
07:47 AM
Dkt. 80 SO

NO. CAAP-XX-XXXXXXX

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
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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.)

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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.)

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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)).

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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.

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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.

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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.)

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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

11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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: /s/ Lisa M. Ginoza
Chief Judge
Ted H.S. Hong,
for Plaintiff-Appellant /s/ Karen T. Nakasone
Associate Judge
Kunio Kuwabe,
Holly T. Shikada, /s/ Sonja M.P. McCullen
Deputy Attorneys General, Associate Judge
for Defendants-Appellees

12