1
IN THE
CIRCUIT COURT OF THE SECOND CIRCUIT
2
STATE OF
HAWAII
3 ___________________________________
)
4 AKAKU MAUI COMMUNITY
TELEVISION )
)
5
Plaintiff, )
Civil No. 07-1-0278
) TRANSCRIPT OF
6
vs.
)
PROCEEDINGS
)
7 LAWRENCE REIFURTH et al. )
)
8
Defendant. )
___________________________________)
9
10
TRANSCRIPT
OF PROCEEDINGS
11
before
the HONORABLE JOEL E. AUGUST, Circuit Court Judge
12
presiding
Thursday, October 4, 2007. Motion
For
13
Preliminary
Injunction and Motion for Order to Show Cause
14
Why
Defendant Aaron Fujioka Should Not Be Held In
15
Contempt.
16
17
APPEARANCES:
18
LANCE
COLLINS, Esq.
Attorney
for the Plaintiff
19
2070
Vineyard Street
Wailuku,
Hawaii
20
PATRICIA
OHARA, Esq.
Attorneys
for the Defendants
21
RODNEY
TAM, Esq
Deputy
Attorneys General
22
425
Queen Street
Honolulu,
Hawaii
23
REPORTED
BY:
24
Beth Kelly, RPR, CSR #235
Official Court Reporter
25
State of Hawaii
2
1 THURSDAY, OCTOBER 4, 2007
2
THE CLERK:
Calling Civil Number 07-1-0278,
3 Akaku Maui Community
Television versus Lawrence Reifurth
4 et al., for motion for
preliminary injunction and motion
5 for order to show cause
why
defendant Aaron Fujioka should
6 not be held in contempt.
7
THE COURT:
Could we have appearances,
8 please?
9
MS. OHARA:
Deputy Attorney General, Pat
10
Ohara
on behalf of defendant, Aaron Fujioka, of the State
11
Procurement
Office.
12
MR. TAM: Rodney
Tam, Deputy Attorney
13
General,
on behalf of the defendants, Lawrence Reifurth
14
and
Department of Commerce and Consumer Affairs.
15
MR. COLLINS: Lance
Collins on behalf of the
16
plaintiff,
Akaku Maui Community Television.
17
THE COURT: Good
morning. I've got a
18
preliminary
question before we begin today.
There
was a
19
motion
on order to show cause why defendant Fujioka should
20
not
be held in contempt. I
gather the allegation is that
21
somehow
defendant Fujioka allegedly extended the deadline
22
for
submission of proposals?
23
MR. COLLINS: Your
Honor, before we get to
24
that,
could we, on the record, discuss the issue of the
25
application
for extended coverage?
3
1
THE COURT:
Well, I thought there was an
2 application filed.
3
MR. COLLINS:
That's right. And
I was under
4 the impression under the
rules
you have to grant it or
5 deny it.
6
THE COURT:
No, I think as long as the
7 application is properly
filed,
the Court does not need to
8 take action on that.
9
Has there
been a response to this motion for
10
order
to show cause that's been filed by anybody? I
11
haven't
seen one.
12
MS. OHARA: There
has not been a response
13
that's
been filed.
14
THE COURT: Are
you agreeing that Mr. Fujioka
15
should
be held in contempt?
16
MS. OHARA: No. I had prior discussions
with
17
Mr.
Collins and we had discussed the possibility of having
18
the
motion withdrawn after I had explained to him what had
19
happened. And
I am happy to explain it
to the Court, as
20
well.
21
THE COURT: Well,
have you folks reached some
22
agreement
as to how this matter is going to be handled?
23
MR. COLLINS: No,
we --
24
MS. OHARA: You
want to go forward with this?
25
MR. COLLINS: We
discussed the possibility,
4
1 and there was no
follow-up
discussion and I spoke with my
2 clients and they said
they
were not amenable to that,
3 unless the State was
willing
to make a concession.
4 Because there was no
further
discussion and a floating
5 possibility of agreeing
to
some resolution of this, we
6 didn't agree.
7
THE COURT:
Well, as Bob Dylan used to say,
8 nothing is for real. So you're not filing a
written
9 response?
10
MS. OHARA: I
do have a declaration on behalf
11
of
the State Procurement Office explaining why the action
12
in
dispute had occurred.
13
THE COURT: Well,
was that intended to be
14
some
kind of an exhibit to some kind of a response to the
15
pleading
that I was supposed to read?
16
MS. OHARA: I
was under the impression that
17
the
motion was to be withdrawn and I had a declaration
18
prepared
just in case there was some confusion, and I do
19
have
a declaration. I'm
prepared to argue it if the Court
20
would
so allow.
21
THE COURT: Well,
I haven't read anything. I
22
don't
mind getting blindsided by stuff usually, but I like
23
a
little notice ahead of time as to what I'm going to be
24
blindsided
by.
25
MS. OHARA: The
allegation is that the State
5
1 Procurement Office has
violated the conditions of the
2 stipulation. The stipulation was to
continue this hearing
3 to this date and that no
further action would be taken on
4 the protest.
5
The statute,
HRS 103D-701 says that if
6 there's a protest that's
been
timely filed, then there
7 shall be no further
action on
solicitation or the award of
8 the contract.
9
THE COURT:
Right.
10
MS. OHARA: And
so the State Procurement
11
Office
has an Internet web site where everything gets
12
posted,
and so for this procurement at issue, for the Paid
13
Public
Education Government Access Service Contract,
14
there's
information up there. There's
notices. There's
15
deadlines. And
because of this pending
lawsuit no further
16
action
was to take place.
17
So the State
Procurement Office realized that
18
the
deadline for proposals was October 1st, two days ago,
19
and
so that day would have come and passed. In order to
20
prevent
that notice and information from disappearing from
21
the
web site, if they did not put in a subsequent date,
22
they
went in and said proposals are now due on December
23
31st,
2007 pending resolution of protest.
And they
24
thought
that meant that it was no further action taken on
25
the
solicitation --
6
1
THE COURT:
Let me ask a question.
How many
2 proposals did they
receive by
October 2nd?
3
MS. OHARA:
None.
4
THE COURT:
None?
5
MS. OHARA:
October 1st, none. Because
6 apparently the parties
are
aware -- or a sufficient number
7 of them are aware that
because
of the protest everything
8 had stopped. But they were afraid that
the
notice and
9 everything would be
dropped
off the web site. So
they
10
needed
to plug in the dates.
11
And I had told them
that this was perceived
12
by
plaintiff to be further action, and they, in good
13
faith,
said we thought it would be okay because we said
14
pending
resolution of the protest, and they meant it as a
15
public
information thing just in case people hadn't
16
realized
that the deadline had changed.
17
So they did that
prior to the October 1
18
deadline,
and the reason was just for public information,
19
to
let anyone who had -- who's not perhaps locally in the
20
state,
aware that there are proposals being considered
21
until
December 31st. This
was
just a date to plug in to
22
keep
the thing on the Internet so it wouldn't drop off.
23
THE COURT: Let
me ask a question. Let's
24
assume
that somebody had submitted a proposal by October
25
2nd,
let's just assume that for a moment, and then all of
7
1 a sudden the State
announces,
oh, by the way, people -- or
2 entities have another
couple
months to submit proposals,
3 what do you think the
response
would be if that entity
4 submitted the proposal?
5
MS. OHARA:
The State would have returned
the
6 proposal back to the
entity.
7
THE COURT:
What if they argued, look,
you've
8 got this strict code and
all
these rules and you interpret
9 the code, and we've
complied
with the code, and we're the
10
only
one interested, and so now you're giving more time
11
for
other people after we've complied and nobody else
12
complied?
13
MS. OHARA: Yes,
because the strict code says
14
everything
stops because of the protest.
We
have a
15
protest
filed by plaintiff, as well.
16
THE COURT: Right.
17
MS. OHARA: So
everything stops. There
can't
18
be
consideration of solicitations.
19
THE COURT: If
everything stops, the question
20
is
what is the definition of everything?
If everything
21
stops,
why should there be continued receipt of proposals?
22
MS. OHARA: There
shouldn't be. There
23
shouldn't
be. That's why State
Procurement Office felt it
24
was
necessary to inform people that there was a protest
25
pending
and no further action would be taken on the
8
1 solicitation or the award
of a
contract.
2
THE COURT:
Well, look, if everything is
3 supposed to stop, why
wouldn't
everything include the
4 acceptance of any new
proposals?
5
MS. OHARA:
Right, but how do you stop it
if
6 someone has sent it to
you? You don't know
it's coming
7 until it arrives and you
receive it.
8
THE COURT:
You said nothing arrived.
9
MS. OHARA:
You said what if something
10
arrived.
11
THE COURT: Nothing
arrived by October 2nd.
12
No
carrier pidgin. No
e-mail. No nothing.
13
MS. OHARA: No. Nothing arrived --
14
THE COURT: So
you've reopened the process
15
and
reopened the invitation for other people to start
16
submitting
proposals; right?
17
MS. OHARA: No. I mean the existing RFP
says
18
proposals
are due October 1st.
19
THE COURT: Doesn't
there need to be a new
20
RFP?
21
MS. OHARA: No,
just a new deadline. The
RFP
22
lays
it all out. This is
what
the State is interested in.
23
This
is the time table. This
is
when certain like
24
different
steps in the procurement process, that you ask
25
for
questions and the State would respond. There's
9
1 deadlines for that. There's deadlines for
meetings.
2 There's deadlines for
when to
respond.
3
THE COURT:
Let me ask you a question and
4 I'll give you my analysis
in a
few minutes.
5
One of the
issues here is the process
6 itself --
7
MS. OHARA:
Yes.
8
THE COURT:
-- right?
9
MS. OHARA:
Yes.
10
THE COURT: So
if the process itself may be
11
faulty,
then how do you go ahead -- and there's a protest
12
that
at least one of the aspects of it involves the
13
process
--
14
MS. OHARA: Yes.
15
THE COURT: --
then how do you then announce
16
that
you are continuing to receive proposals and
17
continuing
on with the process once there's been a protest
18
of
the process?
19
MS. OHARA: Well,
the process remains in
20
place. The
procurement stays in place. The
protest comes
21
in. It stops,
you know -- it
precludes the State from
22
engaging
in any further action on solicitation or the
23
award,
but the procurement process remains there. It's
24
just
been suspended for the duration.
25
THE COURT: Let
me ask you this. How
did
you
10
1 happen to choose or how
did
your client happen to choose
2 December -- what is it,
3rd?
3
MS. OHARA:
31st.
4
THE COURT:
31st, as opposed to October
31st
5 or, you know, November
15th or
whatever?
6
MS. OHARA:
It was the furthest outside
date
7 that they could put in.
8
THE COURT:
You mean the computer doesn't
9 function beyond that
date?
10
MS. OHARA: I
think they had an idea that the
11
protest
might be resolved by then.
12
THE COURT: Oh
really. What happens
if
13
somebody
appeals the results of the protest?
14
MS. OHARA: If
the State would prevail at the
15
protest
level, then it can proceed with the procurement.
16
If
the State does not, then you're correct, everything is
17
still
suspended.
18
I just wanted to
emphasize that the State did
19
not
do this in violation of a stipulation. It was meant
20
more
to keep the information on the Internet and to
21
preserve
the notice and all this other information about
22
the
procurement in case people who may be outside the
23
state
looked at it and said, I wonder what's going on.
24
And
that was the primary purpose of that.
25
And there was no
intent to circumvent the
11
1 stipulation. There was no intent to
violate
the statute
2 in their mind. No further action. No consideration of
3 proposals. There were no proposals
received, but so
4 before the deadline for
the
proposals, they put in this
5 thing saying that --
trying to
inform people, the world at
6 large, don't submit your
proposal on October 1, in case
7 you had not heard about
the
protest, don't submit your
8 proposal by October 1
because
we can't consider it. That
9 was the point of that.
10
THE COURT: So
did you say then on the web
11
site,
don't submit any proposals until the protest and any
12
appeal
is resolved?
13
MS. OHARA: No,
it didn't quite spell it out
14
to
that extent. But it
says,
proposals are due December
15
31,
pending resolution of the protest.
It didn't
16
elaborate
like protest and appeals. It
just said, pending
17
resolution
of protest.
18
THE COURT: We'll
come back to this.
19
MS. OHARA: It
was a one line thing. The
20
proposal
due date is amended to December 3rd, 2007,
21
pending
resolution of protest. And
the primary intent of
22
that
was just to preserve the information on the SPO
23
Internet
site.
24
MR. COLLINS: Your
Honor, if we could add one
25
thing. There
was a two week period
between the time when
12
1 we filed the motion for
preliminary injunction and the
2 date that our voluntary
stipulation was sent to you, to
3 the Court, for approval
and
order.
4
In that time,
that may have probably been the
5 appropriate time to make
any
adjustments to the computer
6 in terms of -- or to file
an
addendum saying that there
7 was a protest -- or to
move
the due date, I mean. They
8 created a new deadline. They didn't just push the
9 deadline off and say,
until
further notice.
10
They picked a
particular date, and if it had
11
to
be done that way, they knew that when this was filed,
12
and
they knew that when they signed the stipulation. And
13
so
the appropriate time would have been before they
14
stipulated
to do nothing further, not a month after they
15
agreed
to do nothing further.
16
THE COURT: Let
me ask counsel. If
for some
17
reason
the protest is not resolved by this date of
18
December
31, is it?
19
MS. OHARA: Yes.
20
THE COURT: Then
--
21
MR. COLLINS: December
3rd.
22
THE COURT: Then
what message goes on the
23
computer?
24
MS. OHARA: I
think this is sufficient to
25
inform
people pending resolution of protest they could
13
1 call the office and say,
has
this been resolved and they
2 would be told, no, it
hasn't.
3
THE COURT:
So my question is, assuming it
4 hasn't been resolved by
December 31st, what do you foresee
5 will be the message that
goes
on the web site December
6 31st? Is there going to be
another
date, February 29th or
7 what?
8
MS. OHARA:
I told SPO you have to figure
out
9 a way to suspend things
without plugging in dates. That
10
there
may be some kind of internal metadata thing that
11
says,
protest, and everything is just, you know, the dates
12
are
suspended, but the information remains on the web
13
site. And they
said they were going
to try and work on
14
that,
but for the meantime, yeah, they have to plug in a
15
date.
16
Also counsel did try
to call me that he
17
intended
to file this motion during the week of September
18
20th
or thereabouts. And
at
that time Hawaiian Tel in
19
Honolulu
had some kind of cable explosion and downtown
20
phones
were out. And my
phone in
our offices were out
21
from
September 20 till the following Monday.
22
I believe Mr. Collins
tried to contact me
23
maybe
Thursday or Friday. My
phone was completely dead.
24
I
got no message. And
then
on Monday, late afternoon, the
25
phone
comes back, and I'm calling back the voice mails and
14
1 one of them was from Mr.
Collins. And so I
immediately
2 called him back and I
said,
you know, it was just bad
3 timing. My phone was out. At which I hadn't the
4 opportunity to explain to
you
what had happened regarding
5 this addendum. And he said, oh, I'm
sorry, I
filed a
6 motion, and so here we
are.
7
MR. COLLINS:
Your Honor, I also, as I stated
8 in my declaration to the
ex
parte motion, I also did call
9 Ms. Ohara's main office
line
and did leave a message with
10
the
secretary or the receptionist that morning, the Monday
11
morning
before I filed it, as I indicated in my
12
declaration. By
1:00 o'clock I did not
receive a
13
response.
14
So I don't know about
exploded telephone
15
exchanges,
but I did again attempt to contact her Monday
16
morning
through her main line and by the time I filed this
17
at
2:00 o'clock, or whenever it was I filed -- whenever I
18
sent
it up to you, your court, I hadn't received a
19
response,
but I don't think that's particularly relevant
20
to
whether or not Mr. Fujioka has failed to comply with
21
the
stipulation and order.
22
THE COURT: Well,
here's what the Court's
23
going
to do on this particular motion.
The
Court's going
24
to
continue this particular motion, the order to show
25
cause,
to give the State an opportunity to file whatever
15
1 written response they
think is
appropriate, and we'll
2 continue this to sometime
around December 31st.
3
MR. COLLINS:
Your Honor, also I'd like to
4 point out that the
addendum in
my Exhibit 2 says that the
5 new due date is December
3rd.
6
THE COURT:
Is what?
7
MS. OHARA:
I'm sorry, yeah, December 3rd.
8
THE COURT:
Oh.
9
MS. OHARA:
December 3rd. I'm
sorry, I
10
misread
that.
11
THE COURT: What
does the web site say
12
December
3rd or 31?
13
MS. OHARA: It
says 3rd.
14
THE COURT: Oh,
well, then we'll continue
15
this
to sometime around December 3rd.
16
THE CLERK: Further
hearing will be set for
17
Thursday,
November 29th, 8:15.
18
MS. OHARA: What
time?
19
THE CLERK: 8:15.
20
THE COURT: Now,
let's get to the main
21
attraction. Although
sometimes the
trailers are more
22
action
packed.
23
Does anybody feel
they need to add anything
24
to
the motion for preliminary injunction and the
25
opposition
to that memorandum in opposition and the reply
16
1 memorandum? There have been actually
two
memoranda in
2 opposition, one from
defendant
Reifurth and the Department
3 of the Commerce and
Consumer
Affairs; the other from
4 defendant Fujioka. And the Court's read all
of
these and
5 done some independent
thinking
on the issue.
6
But if
anybody feels there's something they
7 need to add to what
they've
already written, the Court
8 would certainly like to
give
them the opportunity of
9 addressing the Court. I don't need a summary.
10
MR. COLLINS: Your
Honor, we are prepared to
11
call
witnesses on the issue of harm, if you feel that our
12
submissions
in writing were not sufficient.
13
THE COURT: Well,
this is not an evidentiary
14
hearing,
and the Court does have some questions about
15
that. This is
not an evidentiary
hearing.
16
MR. COLLINS: My
understanding was that it
17
was
set for an evidentiary hearing.
18
THE COURT: Is
this set for an evidentiary
19
hearing,
Ms. Hoopii?
20
THE CLERK: I
do not see that it's set for
21
evidentiary.
22
THE COURT: How
many witnesses do you have?
23
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