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Home My WebLink About2023-11-09 Request for Reconsideration for Subpoena Duces Tecum DeVera, Ashley From: Ian R. Wesley-Smith <iwesley-smith@carlsmith.com> Sent: Thursday, November 9, 2023 8:16 AM To: Tavares, Sherilyn K.; Planning Board of Appeals Cc: Patrick K. Wong; Pause, Stephen (Steve); Braman, Eva; Kekai, Malia; Agustin, Noah; SalasFerguson, Sinclair; Lactaoen, Kawehilani S Subject: Re: 1'0 PROCESSING COMPANY INC (PL-BOA-2023-000065) Request for Issuance of Subpoena Duces Tecum Dear Board, Thank you for the prompt response and for the explanation. We appreciate the careful consideration of the filing. However, we respectfully request that the Board reconsider its denial. Our request for reconsideration is based on the following legal reasons (for ease of reference our responses are shown below in red, next to each of the numbered reasons for the denial): 1. If they are interpreting 3-9 of BOA rules of practice and procedure as this being of our duty or jurisdiction, they are misinterpreting the Rule. The Hawaii Supreme Court has made clear that "a contested case hearing affords parties extensive procedural protections similar to those afforded parties in a civil bench trial before a judge . . . [t]hese protections include the opportunity to issue subpoenas for witnesses to testify under oath or produce documents[.]". Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Haw. 376, 391, 363 P.3d 224, 239 (2015). At the same time, Hawaii Revised Statutes §91-11 provides that a board "shall personally consider the whole record or such portions thereof as may be cited by the parties," and must "hear and examine all of the evidence." The power to issue subpoenas for the production of documents is important both to afford parties the rights recognized in Mauna Kea and to ensure that the Board considers all evidence. Section 3-9 of the BOA Rules expressly provides the Board of Appeals, and specifically the Chair of the Board, with the power and jurisdiction to issue subpoenas for the production of documents to a party (including DPW). a. Their request does not identify a specific document, or part thereof, and does not then specify what in that document is material or relevant to their case. Appellant is unable to identify specific documents, because DPW has not filed a record on appeal and no documents have been provided to Appellant. Therefore, Appellant has requested specific, narrow categories of documents: (1) communications and documents generated in response to the denial at issue (i.e. DPW's file); (2) any policies or procedures applicable to the denial at issue; and (3) other grants or denials of similar requests for a short two-year period. Those requests -- DPW's files on the denial, DPW's policies and procedures, and DPW's decisions on similarly situation applications for a 2-year period -- are narrowly-tailored and relevant to the legal issue in the appeal, which is whether the denial was made in clear error or was arbitrary. That is especially true here, where there is email evidence that DPW potentially revised their policies on agricultural exemptions specifically in response to Appellant's exemption request. See Request Ex. 1. b. Even if this applied, they did not request it in the appropriate manner/form per Rule 3-9(c). We believe that the proposed subpoena meets the requirements of Rule 3-9(c): Appellant provided the name and address of the proposed witness, inserted that information into the proposed subpoena, and filed a copy of the subpoena in the proceeding (as Exhibit 2). If there is another form that the Board prefers, Appellant is willing to resubmit as directed. c. Their second and third paragraphs outlining their request - copies of past and present policies and all decisions on agricultural exemptions from 2022-present - are beyond the scope of what the BOA has the authority to grant a subpoena request for. The Board of Appeals has the authority to grant subpoenas for all relevant information. DPW's policies applicable to the denial and other grants/denials from the contemporaneous period are relevant to the issue on appeal, which is whether DPW's denial of Appellant's permit was made in error or arbitrarily. However, if the Board does not feel that certain requests are relevant, then Appellant respectfully requests that the Board issue a subpoena for the remaining categories, at minimum. 2. They seem to be basically objecting to DPW's ROA & should file their objection as such. The deadline was provided in the Scheduling Order. Appellant filed an objection to the ROA on November 8. As set forth in the objection, DPW has not filed a ROA, and so Appellant has not been provided with any files. Given the lack of a ROA, Appellant respectfully requests that the Board allow Appellant to gain access to DPW's files through the subpoena. 3. As a note, in the Kai LLC case, one of the exhibits Kai LLC had was a formal request they sent to DPW & in response, DPW furnished all emails and internal correspondence that was related to their project/TM K as it related to the specific permit#'s they were referencing with-in their appeal. The BOA has no authority to tell the Department to provide a general list of documents that may or may not be within their possession that has no relation to the specific matter before us. We are not the entity to determine the completeness, or lack thereof, of any generalized document request. The requested subpoena would allow Appellant to work with DPW to gather emails/internal correspondence related to the project. In other words, the subpoena is a "formal request" like the one referenced in the Kai LLC case, which is specifically allowed under Hawaii law and the BOA Rules. What appears more appropriate for them is that they can go through the official legal route of a UIPA and make their request directly to the Department. The BOA cannot grant this type of request as we do not have the jurisdiction in which to do so. The request is DENIED. UIPA is a procedure that exists to allow the general public to access government files and "enhance governmental accountability," through "a general policy of access to government records." Peer News LLC v. City& Cnty. of Honolulu, 143 Haw. 472, 479-80, 431 P.3d 1245, 1252-53 (2018). Although UIPA is a great tool, it is designed for the general public to access information of public interest; it is not designed for parties that need access to information to be able to put on evidence in a contested case hearing affecting their substantive rights. For parties to a contested case such as Appellant, the subpoena power in Board of Appeals Rule 3-9 is the appropriate method for obtaining information, as outlined in Mauna Kea Anaina Hou v. Bd. of Land& Nat. Res., 136 Haw. 376, 391, 363 P.3d 224, 239 (2015). Accordingly, Appellant respectfully requests that the Board reconsider the denial and instead approve issuance of the subpoena duces tecum. We are happy to discuss these issues further if that would be helpful. Thank you, Ian From:Tavares, Sherilyn K. <Sherilyn.Tavares@hawaiicounty.gov> Sent: Wednesday, November 8, 2023 3:50 PM To: Ian R. Wesley-Smith; Planning Board of Appeals Cc: Patrick K. Wong; Pause, Stephen (Steve); Braman, Eva; Kekai, Malia;Agustin, Noah; SalasFerguson, Sinclair; Lactaoen, Kawehilani S Subject: RE: 1'0 PROCESSING COMPANY INC (PL-BOA-2023-000065) Request for Issuance of Subpoena Duces Tecum CAUTION:This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Good afternoon, 2 The Request for Issuance of Subpoena Duces Tecum is DENIED, for several reasons: 1. If they are interpreting 3-9 of BOA rules of practice and procedure as this being of our duty or jurisdiction, they are misinterpreting the Rule. a. Their request does not identify a specific document, or part thereof, and does not then specify what in that document is material or relevant to their case. b. Even if this applied, they did not request it in the appropriate manner/form per Rule 3-9(c). c. Their second and third paragraphs outlining their request -copies of past and present policies and all decisions on agricultural exemptions from 2022-present - are beyond the scope of what the BOA has the authority to grant a subpoena request for. 2. They seem to be basically objecting to DPW's ROA & should file their objection as such. The deadline was provided in the Scheduling Order. 3. As a note, in the Kai LLC case, one of the exhibits Kai LLC had was a formal request they sent to DPW & in response, DPW furnished all emails and internal correspondence that was related to their project/TMK as it related to the specific permit#'s they were referencing with-in their appeal. The BOA has no authority to tell the Department to provide a general list of documents that may or may not be within their possession that has no relation to the specific matter before us. We are not the entity to determine the completeness, or lack thereof, of any generalized document request. What appears more appropriate for them is that they can go through the official legal route of a UIPA and make their request directly to the Department. The BOA cannot grant this type of request as we do not have the jurisdiction in which to do so. The request is DENIED. Please let me know if you have any questions. Have a great afternoon, Sheri From: Ian R. Wesley-Smith <iwesley-smith@carlsmith.com> Sent: Wednesday, November 8, 2023 11:37 AM To: Tavares, Sherilyn K. <Sherilyn.Tavares@hawaiicounty.gov>; Planning Board of Appeals <boardofappeals@hawaiicounty.gov> Cc: Patrick K. Wong <pwong@carlsmith.com>; Pause, Stephen (Steve) <Steve.Pause@hawaiicounty.gov>; Braman, Eva <Eva.Braman@hawaiicounty.gov>; Kekai, Malia <malia.kekai@hawaiicounty.gov>; Agustin, Noah <Noah.Agustin@hawaiicounty.gov>; SalasFerguson, Sinclair<Sinclair.SalasFerguson@hawaiicounty.gov>; Lactaoen, Kawehilani S <KawehilaniS.Lactaoen@hawaiicounty.gov> Subject: RE: 1'O PROCESSING COMPANY INC (PL-BOA-2023-000065) Request for Issuance of Subpoena Duces Tecum 3 Ms. Sherilyn, No, we did not make a UIPA request. A subpoena and working directly with Sinclair on the limited discovery is our preference. Thank you very much. Best Regards, Ian From: Tavares, Sherilyn K. [mailto:Sherilyn.Tavares@hawaiicounty.gov] Sent: Wednesday, November 8, 2023 11:26 AM To: Ian R. Wesley-Smith; Planning Board of Appeals Cc: Patrick K. Wong; Pause, Stephen (Steve); Braman, Eva; Kekai, Malia; Agustin, Noah; SalasFerguson, Sinclair; Lactaoen, Kawehilani S Subject: RE: I'0 PROCESSING COMPANY INC (PL-BOA-2023-000065) Request for Issuance of Subpoena Duces Tecum CAUTION:This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Good Morning Mr. Wesley-Smith, I will take your request to Chair Aguiar. While I await her reply, may I ask if you have previously made this request pursuant to HRS 92F (UIPA) to the Department? Also, no hard copies are required to the BOA. Thank you, Sheri 4 From: Ian R. Wesley-Smith <iwesley-smith@carlsmith.com> Sent: Tuesday, November 7, 2023 6:22 PM To: Planning Board of Appeals <boardofappeals@hawaiicounty.gov> Cc: Patrick K. Wong <pwong@carlsmith.com>; Pause, Stephen (Steve) <Steve.Pause@hawaiicounty.gov>; Braman, Eva <Eva.Braman@hawaiicounty.gov>; Kekai, Malia <malia.kekai@hawaiicounty.gov>; Agustin, Noah <Noah.Agustin@hawaiicounty.gov>; SalasFerguson, Sinclair<Sinclair.SalasFerguson@hawaiicounty.gov>; Lactaoen, Kawehilani S <KawehilaniS.Lactaoen@hawaiicounty.gov> Subject: 1'O PROCESSING COMPANY INC (PL-BOA-2023-000065) Request for Issuance of Subpoena Duces Tecum Dear Board of Appeals, Please find attached Appellant's Request for Issuance of Subpoena Duces Tecum to DPW. A copy has been filed in EPIC. If the BOA or any party would like hard copies, please let me know and we can arrange for delivery tomorrow. Thank you very much for the consideration. Best Regards, Ian Wesley-Smith CC: County of Hawaii, Department of Public Works IAN R.WESLEY-SMITH Partner I Carlsmith Ball LLP Carlsmith Bali A LIMFTEb LIAIILiTY LAW PkRTleEpi MP 121 Waianuenue Avenue Hilo, HI 96720 Tel: 808.969.8416 Fax: 808.935.7975 Honolulu • Hilo • Kona • Maui IMPORTANT/CONFIDENTIAL: This message from the law firm of Carlsmith Ball LLP, A Limited Liability Law Partnership, contains information which may be confidential, privileged, and/or exempt from disclosure under applicable law. If you are not the addressee (or authorized to receive for the addressee), you are hereby notified that the copying, use or distribution of any information or materials transmitted in or with this message is strictly prohibited. If you received this message in error, please immediately notify me(the sender) 5 by replying to this email, then promptly destroy the original message. Thank you. 6