Flores v. Ballard. ( 2022 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
12-JUL-2022
09:19 AM
Dkt. 62 OPA
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
E. KALANI FLORES,
Petitioner/Plaintiff-Appellant,
vs.
ARTHUR LOGAN IN HIS CAPACITY AS CHIEF OF POLICE
OF THE CITY AND COUNTY OF HONOLULU; PAUL FERREIRA IN HIS
CAPACITY AS CHIEF OF POLICE OF THE COUNTY OF HAWAIʻI
POLICE DEPARTMENT; JOHN PELLETIER IN HIS CAPACITY AS
CHIEF OF POLICE OF MAUI COUNTY,
Respondents/Defendants-Appellees.1
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIV. NO. 3CC191000190)
JULY 12, 2022
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
This case arises from the controversy surrounding the
construction of the Thirty Meter Telescope (TMT) on Mauna Kea,
1 Pursuant to Hawaiʻi Rules of Appellate Procedure Rule 43(c)(1) (2010),
Arthur Logan, Chief of Police of the City and County of Honolulu, has been
substituted as a party in place of former Chief of Police Susan Ballard, and
John Pelletier, Chief of Police of Maui County, has been substituted as a
party in place of former Chief of Police Tivoli Faaumu.
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located on the Island of Hawaiʻi. Petitioner/Plaintiff-Appellant
E. Kalani Flores (Flores) challenged the presence of police
officers from the Honolulu Police Department (HPD) and Maui
County Police Department (MPD), who were assisting the Hawaiʻi
County Police Department (HCPD) within the County of Hawaiʻi.
The Circuit Court of the Third Circuit (circuit court)
determined that Hawaiʻi Revised Statutes (HRS) § 52D-5 does not
provide for a private right of action and dismissed Flores’s
complaint.
On certiorari, Flores argues that the Intermediate
Court of Appeals (ICA) erroneously affirmed the circuit court’s
“Order Granting Defendant Susan Ballard’s Motion to Dismiss”
(Order Granting Motion to Dismiss). We hold that the circuit
court did not err when it dismissed Flores’s complaint because
there is no private right of action pursuant to HRS § 52D-5. In
addition, the ICA correctly determined that mutual aid between
police departments of different counties is allowed under Hawaiʻi
law. Accordingly, the ICA did not err by affirming the circuit
court’s Order Granting Motion to Dismiss and we affirm the ICA’s
Judgment on Appeal.
2
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I. BACKGROUND
A. Factual Background
In 2014, Flores requested that the Board of Land and
Natural Resources (the Board) hold a contested case hearing
prior to approving a sublease of land on Mauna Kea from the
University of Hawaiʻi to the TMT International Observatory for
the purpose of constructing the TMT. Flores v. Bd. of Land &
Nat. Res., 143 Hawaiʻi 114, 117-18, 424 P.3d 469, 472-73 (2018).
The Board denied Flores’s request for a contested case hearing
and Flores appealed to the Environmental Court of the Third
Circuit (environmental court), which agreed that Flores had a
constitutional right to a contested case hearing. Id. at 116,
424 P.3d at 471. On secondary appeal, this court reversed the
environmental court’s decision and held that Flores had a
“constitutionally cognizable property interest,” id. at 126, 424
P.3d at 481, but “was not entitled to a contested case hearing
regarding whether [the Board] should consent to the Sublease.”
Id. at 128, 424 P.3d at 483. Thus, construction of the TMT was
allowed to proceed after years of legal challenges.
On July 13, 2019, Flores and a number of other people
assembled at Puʻu Huluhulu near the access road to Mauna Kea’s
summit after police officers blocked public access to Mauna
Kea’s summit. At Puʻu Huluhulu, Flores and the group engaged in
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religious rituals and expressed their reverence for Mauna Kea
and opposition to the TMT project while blocking the access
road. On July 15, 2019, the Chief of HCPD,
Respondent/Defendant-Appellee Paul Ferreira (Chief Ferreira),
and the Chief of HPD, Respondent/Defendant-Appellee Susan
Ballard (Chief Ballard), entered into an interdepartmental
assignment agreement pursuant to HRS § 78-27 (2012),2 in which
2 HRS § 78-27 (2012) provides:
Temporary inter- and intra-governmental assignments
and exchanges. (a) With the approval of the respective
employer, a governmental unit of this State may participate
in any program of temporary inter- or intra-governmental
assignments or exchanges of employees as a sending or
receiving agency. “Agency” means any local, national, or
foreign governmental agency or private agency with
government sponsored programs or projects.
(b) As a sending agency, a governmental unit of this
State may consider its employee on a temporary assignment
or exchange as being on detail to a regular work assignment
or on leave of absence without pay from the employee’s
position. The employee on temporary assignment or exchange
shall be entitled to the same rights and benefits as any
other employee of the sending agency.
(c) As a receiving agency, a governmental unit of
this State shall not consider the employee on a temporary
assignment or exchange who is detailed from the sending
agency as its employee, except for the purpose of
disability or death resulting from personal injury arising
out of and in the course of the temporary assignment or
exchange. The employee on detail may not receive a salary
from the receiving agency, but the receiving agency may pay
for or reimburse the sending agency for the costs, or any
portion of the costs, of salaries, benefits, and travel and
transportation expenses if it will benefit from the
assignment or exchange.
(d) An agreement consistent with this section and
policies of the employer shall be made between the sending
and receiving agencies on matters relating to the
assignment or exchange, including but not limited to
supervision of duties, costs of salary and benefits, and
travel and transportation expenses; provided that the
agreement shall not diminish any rights or benefits to
4
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Chief Ferreira delegated police authority to HPD officers who
were temporarily assigned to support HCPD operations relating to
the TMT construction project. On July 16, 2019, the Chief of
MPD, Respondent/Defendant-Appellee Tivoli Faaumu (Chief Faaumu),
entered into an identical interdepartmental assignment agreement
with Chief Ferreira (collectively, the Inter-Departmental
Agreements).3
On July 16, 2019, HPD and MPD officers arrived on the
Island of Hawaiʻi to provide support to HCPD. Chief Ferreira
deputized the assisting officers from HPD and MPD and instructed
which an employee of a governmental unit of this State is
entitled under this section.
(e) As a receiving agency, a governmental unit of
this State may give the employee of the sending agency on a
temporary assignment or exchange an exempt appointment and
grant the employee rights and benefits as other exempt
appointees of the receiving agency if it will benefit from
the assignment or exchange.
(Emphasis added.)
3 The Inter-Departmental Agreements contained the following recitals:
WHEREAS, HCPD desires the services of [HPD/MPD]
personnel and [HPD/MPD] has agreed to the temporary
assignment of [HPD/MPD] personnel and to support and manage
police operations in conjunction with the Thirty Meter
Telescope Project (“TMT Project”) and any other assignment
as deemed necessary by the HCPD Chief of Police or his
designee with the approval of [HPD/MPD]; and
WHEREAS, this employment is a temporary
interdepartmental assignment and this employment is made
under the provisions of [HRS §] 78-27(a-d).
While the Inter-Departmental Agreements cited HRS § 78-27 as authority for
the inter-department assignments from HPD and MPD to HCPD, the “Delegation of
Police Authority” attached to each agreement (Delegations) cited HRS § 52D-5
as authority for Chief Ferreira to deputize the assisting officers to act in
a law enforcement capacity within the County of Hawaiʻi.
5
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them to assist with clearing the access road to Mauna Kea’s
summit so that the construction equipment could proceed. HPD
officers assisted Chief Ferreira until July 17, 2019, and then
withdrew once it was determined that their assistance was no
longer needed.4
B. Circuit Court Proceedings5
On July 17, 2019, Flores filed a “Complaint for
Declaratory and Injunctive Relief” in the circuit court naming
Chief Ballard, Chief Faaumu, and Chief Ferreira (collectively,
the Chiefs of Police) as Defendants. Flores challenged the
presence and legal authority of police officers from HPD and MPD
within the County of Hawaiʻi. Flores’s complaint alleged that
the Chiefs of Police violated HRS § 52D-56 by using HPD and MPD
4 Presumably, MPD officers also withdrew on July 17, 2019.
5 The Honorable Henry T. Nakamoto presided.
6 HRS § 52D-5 (2012) provides:
Powers of the chief of police outside own county.
The chief of police of each county and any duly authorized
subordinates shall have and may exercise all powers,
privileges, and authority necessary to enforce the laws of
the State, in a county other than the county in and for
which the chief has been appointed, if:
(1) The exercise of such power, privilege, and
authority is required in the pursuit of any
investigation commenced within the county in and for
which the chief has been appointed; and
(2) The concurrence of the chief of police of the
county in which the power, privilege, and authority
sought to be exercised is obtained.
(Emphasis added.)
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officers to assist HCPD and that the HPD and MPD officers lacked
legal authority to exercise police powers within the County of
Hawaiʻi. Flores sought as relief (1) a judgment declaring that
the Chiefs of Police violated HRS § 52D-5 by using HPD and MPD
officers within the County of Hawaiʻi; (2) preliminary and
permanent injunctions prohibiting the Chiefs of Police from
violating HRS § 52D-5; (3) a temporary restraining order;7 and
(4) attorney’s fees pursuant to the private attorney general
doctrine.
Chief Ballard filed a motion to dismiss Flores’s
complaint (Motion to Dismiss) pursuant to Hawaiʻi Rules of Civil
Procedure (HRCP) Rule 12(b)(6).8 Chief Ballard argued that
Flores’s complaint failed to state a claim upon which relief
could be granted because there is no private right of action for
which a plaintiff can seek a remedy for an alleged violation of
HRS § 52D-5. Citing to Whitey’s Boat Cruises, Inc. v. Napali-
Kauai Boat Charters, Inc., 110 Hawaiʻi 302, 312, 132 P.3d 1213,
1223 (2006), as corrected (Apr. 25, 2006), Chief Ballard
7 Flores also filed an ex parte motion seeking a temporary restraining
order enjoining HPD and MPD officers from assisting HCPD with “keeping
roadways clear for the movement of construction equipment and vehicles on
Hawaiʻi Island, and any police activities related thereto, including, but not
limited to, effectuating arrests, traffic control, [and] transportation of
detainees” in the area of the protests. (Internal quotation marks omitted.)
8 HRCP Rule 12(b) (2000) provides in relevant part “that the following
defenses may at the option of the pleader be made by motion: . . . (6)
failure to state a claim upon which relief can be granted.”
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contended that HRS § 52D-5 does not create a private right of
action based on the
following factors: (1) whether the plaintiff is “one of the
class for whose especial benefit the statute was enacted”;
(2) whether there is “any indication of legislative intent,
explicit or implicit, either to create such a remedy or to
deny one”; and (3) whether a private right of action would
be “consistent with the underlying purposes of the
legislative scheme to imply such a remedy for the
plaintiff.”
Applying these factors to HRS § 52D-5, Chief Ballard argued that
(1) the statute was enacted to protect local jurisdictions from
outside investigators and to assure cooperation between the
chiefs of police; (2) the statute expresses no legislative
intent to create a private remedy; and (3) a private remedy
would be inconsistent with the purpose of the statutory scheme.
Chief Ballard also argued that Flores’s claim was moot because
HPD officers were no longer on the Island of Hawaiʻi for any
purpose relating to the TMT.
Chief Faaumu joined in Chief Ballard’s Motion to
Dismiss. Chief Faaumu agreed with Chief Ballard’s arguments
that there is no private right of action for alleged violations
of HRS § 52D-5 and that the case was moot.
Chief Ferreira also joined in Chief Ballard’s Motion
to Dismiss and agreed that there is no private right of action
for alleged violations of HRS § 52D-5. Chief Ferreira took no
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position on whether the case was moot because this argument did
not apply to him as Chief of HCPD.
On September 12, 2019, Flores filed a memorandum in
opposition to Chief Ballard’s Motion to Dismiss (Opposition).
Flores argued that (1) HRS § 52D-5 creates an implied private
right of action; and (2) his case was not moot because
exceptions to the mootness doctrine applied. Without seeking
leave of the circuit court, Flores attached to his Opposition a
declaration by Flores, a declaration by Flores’s counsel, and
“Exhibits” (1) through (8).9
On September 17, 2019, Chief Ballard filed a reply
memorandum in which she argued, inter alia, that (1) the
declarations and exhibits attached to Flores’s Opposition were
improper and should be ignored; (2) HRS § 52D-5 was not
implicated by HPD and MPD officers responding to Chief
Ferreira’s request for assistance; and (3) the intergovernmental
assignment of police officers from HPD and MPD to HCPD was
authorized by HRS § 78-27.
On September 18, 2019, Flores filed an ex parte motion
for leave to file a supplemental declaration and three
additional exhibits in support of Flores’s Opposition. A
9 The exhibits are various news articles documenting assistance by HPD
and MPD on Mauna Kea and letters and emails from Flores’s counsel to the
respective county counsel requesting assurance that HPD and MPD would not
assist HCPD with regard to the TMT operations again.
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declaration by Flores’s counsel and “Proposed Exhibits” (9)
through (11) were appended to the ex parte motion (Supplemental
Filing).
On September 19, 2019, the circuit court granted
Flores’s ex parte motion and ordered that the declaration of
counsel and Proposed Exhibits (9) through (11) be included in
Flores’s Opposition.10
The circuit court heard Chief Ballard’s Motion to
Dismiss and Chief Faaumu’s and Chief Ferreira’s joinders on
September 20, 2019. Regarding Chief Ballard’s claim that the
Inter-Departmental Agreements were authorized by HRS § 78-27,
Flores argued that HRS § 78-27 did not provide legal authority
for HPD and MPD to exercise police powers on the Island of
Hawaiʻi. After hearing argument, the circuit court made an oral
ruling:
The Court notes that the Court has reviewed the
legislative history of [HRS § 52D-5] . . . .
The Court views as the purpose is [sic] to provide
continuity to police investigations from one county
jurisdiction to another and to also protect the local
control and assure its cooperation through the provisions
of notification to a county chief of police when
investigations are to be pursued within this jurisdiction
or a jurisdiction.
10 In the declaration, Flores’s counsel attested that he required further
discovery and was still waiting for the Chiefs of Police to produce
documents. Despite the fact that Flores sought leave to supplement his
Opposition with matters outside the pleadings, Flores claimed “this case is
not ripe for summary judgment because discovery is outstanding.”
Exhibits (9) through (11) are the responses to Flores’s first request
for production of documents by Chief Ferreira, Chief Faaumu, and Chief
Ballard, respectively, including copies of the Inter-Departmental Agreements.
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So the Court concludes that there is no private right
of action pursuant to HRS Section 52D-5. Therefore, the
motion to dismiss is granted.
(Emphasis added.)
On November 12, 2019, the circuit court entered the
Order Granting Motion to Dismiss, citing as the reason for the
decision that “there is no private right of action pursuant to
[HRS] § 52D-5.”11 The circuit court also entered Judgment in
favor of the Chiefs of Police and against Flores on November 12,
2019.
C. ICA Proceedings
1. Opening Brief
On December 6, 2019, Flores filed a notice of appeal.
Flores argued that the circuit court erred by concluding that
HRS § 52D-5 does not provide a private right of action.12
First, Flores argued that the language of HRS § 52D-5
evinces a legislative intent to include a private right of
action. Flores reasoned that because the Legislature included a
“territorial limit[]” on where police officers can exercise
their police powers, HRS § 52D-5 creates a right entitling
Flores to be “free from off island county police officers
11 The circuit court never ruled on Chief Ballard’s objections to the two
declarations and eight exhibits attached to Flores’s Opposition.
12 Although Flores’s opening brief stated four points of error, each
alleged error is actually an argument for why HRS § 52D-5 includes a private
right of action.
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exercising police powers on Hawaiʻi Island.” Flores also
intimated that a police officer making an arrest outside of the
officer’s home county violates the arrestee’s Fourth Amendment
rights. Flores further asserted that when enacting HRS § 52D-5,
the Legislature included the “requirement of hometown
origination to avert the evil of off island county police
invasion” because “off island police” are more likely to violate
an individual’s rights. According to Flores, the Legislature
“did not envision or intend for off island police to go to
another jurisdiction” except to investigate a crime related to
“their home turf.”
Second, Flores argued that HRS § 52D-5 implicitly
contains a private right of action in order to allow judicial
review of “illegitimate police activity beyond a county police’s
home territory.” Flores contended that if the Legislature
actually intended to preclude a private right of action, and
thus escape judicial review, “that preclusion violates the
separation of powers doctrine.” Flores maintained that because
the Hawaiʻi Attorney General acquiesced and supported the actions
of the Chiefs of Police, which violated HRS § 52D-5, there must
be an implied right of action available to facilitate judicial
review of police activity outside an officer’s home
jurisdiction. Flores argued that his complaint seeking
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declaratory relief was consistent with the private attorney
general doctrine, which permits a private citizen to collect
attorney’s fees when enforcing an alleged violation of state law
where the government has failed to do so.
Third, Flores argued that HRS § 52D-5 must include a
private right of action because it lacks an explicit penalty or
any other mechanism for enforcement. Flores maintained that
Hawaiʻi case law precludes a private right of action for tort
damages only in statutes which already contain enforcement or
penalty mechanisms, which HRS § 52D-5 does not. Flores also
contended that it is an open question whether declaratory and
injunctive relief are available when a statute contains an
enforcement mechanism.
2. Answering Brief
The Chiefs of Police filed an answering brief on
August 5, 2020.
First, the Chiefs of Police argued that the mutual aid
provided by HPD and MPD to Chief Ferreira was authorized by HRS
§ 78-27, rather than HRS § 52D-5 which is Hawaiʻi’s “hot [or
fresh] pursuit” statute. The Chiefs of Police contended that
HRS § 78-27 is Hawaiʻi’s “mutual aid” statute, which allows for
mutual aid — including mutual aid for police services — so long
as an oral or written agreement exists between the sending and
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receiving agencies. The Chiefs of Police explained that in this
case, Chief Ferreira entered into written agreements with Chief
Ballard and Chief Faaumu for the inter-departmental assignment
of police officers.13
Second, the Chiefs of Police argued that because
HRS § 78-27 authorized the mutual aid that Flores challenged,
the ICA need not reach the issue of whether the mutual aid was
authorized under HRS § 52D-5. However, the Chiefs of Police
maintained that the circuit court decision could also be
affirmed on the basis of HRS § 52D-5 because (1) Flores was not
arrested and thus could not challenge whether HPD and MPD had
legal authority to act within the County of Hawaiʻi; (2) HRS
§ 52D-5 does not create a private right of action;14 and
(3) Chief Ferreira’s power to deputize HPD and MPD officers is
13 The Chiefs of Police also cited HRS § 127A-12(c)(2) (Supp. 2017) as a
statutory basis for mutual aid during emergencies. HRS § 127A-12(c)(2)
provides in relevant part:
(c) The mayor may exercise the following powers pertaining
to emergency management:
. . . .
(2) Sponsor and develop mutual aid plans and
agreements for emergency management between one
or more counties, and other governmental,
private-sector, or nonprofit organizations, for
the furnishing or exchange of . . . police
services . . . and other . . . personnel[] and
services as may be needed.
14 Chief Ballard repeated the same arguments made before the circuit court
for why HRS § 52D-5 does not create a private right of action.
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not limited by HRS § 52D-5, because the Charter of the County of
Hawaiʻi (CCH) § 7-2.4(e) grants Chief Ferreira “such other
powers, duties, and functions as may be . . . provided by law.”
3. Reply Brief
Flores filed a reply brief on August 31, 2020. In his
reply brief, Flores rejected the Chiefs of Police’s claim that
HRS § 78-27 authorized mutual aid by HPD and MPD, and insisted
that “off island police officers” may only use their police
powers in other counties when the requirements of HRS § 52D-5
are satisfied. Flores argued that, pursuant to HRS § 78-27(b),
employees on a temporary assignment are “entitled to the same
rights and benefits as any other employee of the sending
agency,” but that the exercise of police powers is neither a
right nor a benefit.
Flores insisted that HRS § 127A-12 was inapplicable
because the Chiefs of Police “conspired to violate HRS § 52D-5”
before any emergency was declared on Mauna Kea. Additionally,
Flores argued that he satisfied the requirements of standing for
declaratory relief, notwithstanding the fact that he himself was
not arrested. Finally, Flores reiterated the arguments made in
his opening brief that HRS § 52D-5 creates a private right of
action.
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4. Amicus Curiae Brief
The International Municipal Lawyers Association, Inc.
(the IMLA)15 filed a motion for leave to file an amicus curiae
brief in support of the Chiefs of Police, which the ICA granted.
The IMLA explained that mutual aid by law enforcement
is an essential form of intergovernmental cooperation that is
common both in Hawaiʻi16 and throughout the United States.
According to the IMLA, mutual aid “enables jurisdictions to
access additional resources when the need arises . . . [and] to
effectively utilize all available resources, coordinate
planning, and minimize conflict in order to ensure a timely and
efficient response.” The IMLA noted that the sharing of
resources within Hawaiʻi is especially important because people
and resources are not evenly distributed throughout the state17
15 The IMLA described itself and its interest in this case as follows:
The [IMLA] is a non-profit, professional organization that
has been an advocate and resource for local government
lawyers since 1935. IMLA serves as an international
clearinghouse of legal information and cooperation on
municipal legal matters. IMLA has a significant interest
in the issue presented here, which is the validity of
mutual aid agreements between and among local and municipal
governments, including agreements relating to the sharing
of law enforcement resources.
16 The IMLA cited as recent examples of mutual aid in Hawaiʻi the disaster
responses after Hurricane Iniki in 1992 and after the eruption of Kilauea in
2018.
17 One example of this uneven distribution of resources is that Honolulu
County covers approximately 600 square miles, but has four times the number
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and help from neighboring states cannot arrive in a timely
fashion.
Second, the IMLA argued that mutual aid is authorized
by HRS § 78-27, which provides for temporary assignment of
personnel between state agencies, and by HRS § 127A, which
provides for rendering of mutual aid during an emergency. The
IMLA noted that the Legislature enacted HRS chapter 127A to
“ensure that the preparations of this State will be adequate” to
address the “existing and increasing possibility of the
occurrence of disasters or emergencies.” Specifically, HRS
§ 127A-12(c)(2) permits county mayors to “‘[s]ponsor and develop
mutual aid plans and agreements for emergency management between
one or more counties’ for the provision of various services,
including ‘police services’ and ‘personnel necessary to provide
or conduct those services.’” (Alteration in original.) The
IMLA observed that even absent specific statutory authority,
courts in other jurisdictions have upheld intergovernmental
agreements for mutual aid under general principles of contract
law.
Third, the IMLA maintained that HRS § 52D-5, Hawaiʻi’s
hot- or fresh-pursuit statute, does not limit the ability of
of police officers as the County of Hawaiʻi, which covers more than 4,000
square miles.
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municipalities to enter into law enforcement mutual aid
agreements. The IMLA suggested distinguishing between a mutual-
aid statute, which benefits the receiving agency, and a hot-
pursuit statute which benefits the sending agency. According to
the IMLA, “one is not a substitute for the other, nor does one
preclude the other.” Thus, the IMLA urged the ICA to affirm the
circuit court and send a “clear signal . . . that mutual aid
agreements like the one at issue here are broadly authorized
under HRS § 78-27.”
5. ICA’s Published Opinion
The ICA published its opinion on January 27, 2021.
Flores v. Ballard, 149 Hawaiʻi 81, 482 P.3d 544 (App. 2021). The
ICA affirmed the circuit court’s judgment on other grounds.18
Id. at 92, 482 P.3d at 555.
As relevant here, the ICA considered whether HRS
§ 52D-5 was implicated by HPD and MPD officers assisting Chief
Ferreira on Mauna Kea. Id. at 88-89, 482 P.3d at 551-52. The
ICA reasoned that HRS § 52D-5 applies when a sending police
department seeks permission to exercise police authority in
18 The ICA cited Tauese v. State, Dep’t of Labor & Indus. Relations, 113
Hawaiʻi 1, 15 n.6, 147 P.3d 785, 799 n.6 (2006), for the proposition that “the
result will not be disturbed on the ground that the circuit court gave the
wrong reason for its ruling.” Flores v. Ballard, 149 Hawaiʻi 81, 88, 482 P.3d
544, 551 (App. 2021). The ICA noted that “[i]n our de novo review we ‘may
affirm a grant of summary judgment on any ground appearing in the record,
even if the circuit court did not rely on it.’” Id. (citation omitted).
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another county “in the pursuit of any investigation commenced
within” the sending agency’s home county. Id. at 89, 482 P.3d
at 552. But here, the ICA noted, it was Chief Ferreira who
requested officers from HPD and MPD “to assist HCPD in handling
matters on Hawaiʻi Island that strained HCPD’s resources.” Id.
According to the ICA, “[n]either Chief Ballard nor Chief Faaumu
purported to exercise police authority in the County of Hawaiʻi
‘in the pursuit of any investigation commenced within’ the City
and County of Honolulu or the County of Maui.” Id. (quoting HRS
§ 52D-5). Thus, the ICA concluded that HRS § 52D-5 was neither
implicated nor violated19 and “[i]t was thus appropriate for the
circuit court to dismiss Flores’s complaint based upon the
alleged violation of HRS § 52D-5 by the Chiefs of Police.” Id.
Second, the ICA considered whether there was other
statutory authority for HPD and MPD to support HCPD’s
TMT-related operations. Id. at 89-91, 482 P.3d at 552-54.
Specifically, the ICA considered whether the Inter-Departmental
Agreements were authorized by HRS § 78-27, as Chief Ballard
argued. Id. The ICA pointed out that HRS § 78-27(d) provides
parameters for the type of agreement:
An agreement consistent with this section and policies
of the employer shall be made between the sending and
receiving agencies on matters relating to the assignment or
19 The ICA did not reach the issue of whether HRS § 52D-5 creates a
private right of action because it concluded that the statute was not
violated. Id. at 89, 482 P.3d at 552.
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exchange, including but not limited to supervision of
duties, costs of salary and benefits, and travel and
transportation expenses; provided that the agreement shall
not diminish any rights or benefits to which an employee of
a governmental unit of this State is entitled under this
section.
Id. at 90, 482 P.3d at 553. The ICA noted that HRS § 78-27
contemplates that county police departments could be both
“sending” and “receiving” agencies, because “Act 253 of the 2000
legislative session, which resulted in the enactment of HRS
§ 78-27, mentions ‘police’ three times.”20 Id. The ICA reasoned
that HRS § 78-27 “protects the temporarily assigned police
officers’ civil service, collective bargaining, workers’
compensation, and other employment rights and benefits during
the temporary assignment.”21 Id. Thus, the ICA concluded that
20 The ICA pointed out that “[s]ection 74 refers to workers compensation
benefits for police officers. Section 96 refers to a collective bargaining
unit for police officers. Section 100 refers to resolution of labor
grievances involving the police officers’ collective bargaining unit. 2000
Haw. Sess. Laws Act 253.” Id. at 90 n.8, 482 P.3d at 553 n.8.
21 The ICA also noted that the Inter-Departmental Agreements contained the
following provisions consistent with HRS § 78-27(d):
3. It is the understanding of the parties that the
State Attorney General’s Office has agreed to pay for
and/or reimburse the Sending Agency for the costs, any
portion of the costs, overtime, benefits, and travel and
transportation expenses on behalf of the Receiving Agency.
However, HCPD shall ultimately be responsible for said
costs and expenses should the State Attorney General’s
Office fail to pay for and/or reimburse the Sending Agency
for any expenditures related to the TMT Project and any
other assignment as deemed necessary by the HCPD Chief of
Police or his designee with the approval of [HPD/MPD].
Such expenses may be paid for or reimbursed to the
[HPD/MPD].
4. The [HPD/MPD] personnel are to carry out and
observe all lawful instructions and orders issued by the
20
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HRS § 78-27 authorized the Inter-Departmental Agreements for the
temporary assignment of HPD and MPD officers to support HCPD.
Id. at 91, 482 P.3d at 554.
Third, the ICA considered whether HPD and MPD officers
were authorized to exercise police powers within the County of
Hawaiʻi — which was the conduct specifically challenged by Flores
in his lawsuit. Id. at 91-92, 482 P.3d at 554-55. The
Delegations signed by Chief Ferreira and attached to each of the
Inter-Departmental Agreements state:
Under the authority of the Chief of Police, of Hawaiʻi
County Police Department, the following officers of the
[HPD/MPD] (please see attached list), are granted full
police officer power, privilege and authority, under HRS
[§] 52D-5. The purpose of this delegation of authority,
while assigned to Hawaiʻi [C]ounty will be to support and
manage police operations in conjunction with the Thirty
Meter Telescope project and any other assignment as deemed
necessary by the Hawaiʻi County Police Chief or his
designee. This delegation of Police authority shall be
effective from July 16, 2019 until the end of police
appointing authority or designee relative to employment.
5. The [HPD/MPD] personnel shall perform all of
the work under the supervision of an immediate supervisor
in the Sending Agency or any other person in the Receiving
Agency who has the authority to supervise the activities.
. . . .
9. This employment will be subject to all laws,
ordinances, and rules and regulations having the effect of
law governing employment of public employees; and
10. Any and all collective bargaining agreements
pertinent to [HPD/MPD] personnel’s regular positions with
the [HPD/MPD] shall apply, including but not limited to
salary.
Id. at 90-91, 482 P.3d at 553-54.
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operations for this project as deemed necessary by the
Hawaiʻi County Chief of Police.
Id. at 91, 482 P.3d at 554 (emphasis added). The ICA described
the Delegations’ citation to HRS § 52D-5 as “inapt,” because
that statute “does not apply to the circumstances described by
the Delegations.” Id.
However, the ICA surmised that Chief Ferreira was
authorized to delegate police powers to HPD and MPD officers by
other statutes: HRS §§ 52D-3,22 52D-6,23 and Article VII, Chapter
224 of the CCH (CCH Article VII). Id. at 91-92, 482 P.3d at 554-
22 HRS § 52D-3 (2012) provides: “The chief of police shall have the powers
and duties as prescribed by law, the respective county charter, and as
provided by this chapter.”
23 HRS § 52D-6 (2012) provides: “The chief of police may appoint officers
and other employees under such rules and at such salaries as are authorized
by law. Probationary appointment, suspension, and dismissal of officers and
employees of the police department shall be as authorized by law.” (Emphasis
added.)
24 Article VII, Chapter 2 of the CCH (2018) provides, in relevant part:
Section 7-2.1. Organization.
There shall be a police department consisting of a
police commission, a chief of police, a deputy chief of
police, and the necessary staff.
. . . .
Section 7-2.4. Powers, Duties, and Functions of the Chief
of Police.
The chief of police shall be the administrative head
of the police department and shall:
(a) Be responsible for the preservation of the
public peace, prevention of crime, detection
and arrest of offenders against the law,
protection of the rights of persons and
property, and enforcement and prevention of
violations of all laws of the state and
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55. Specifically, the ICA reasoned that (1) HRS § 52D-3 grants
each chief of police “the powers and duties as prescribed by
law, the respective county charter, and as provided by this
chapter[;]” (2) CCH Article VII § 7-2.4(b) empowers the chief of
HCPD to “[t]rain, equip, maintain, and supervise the force of
police officers[;]” and (3) HRS § 52D-6 allows the chief of
police to “appoint officers . . . under such rules . . . as are
authorized by law.” Id.
The ICA described the relationship between HRS § 78-27
and the statutes authorizing Chief Ferreira’s delegation of
authority as follows:
HRS § 78-27 is a law that authorizes Chief Ferreira
to temporarily receive police officers from another
county’s police department to support HCPD operations on
Hawaiʻi Island. HRS § 78-27 also authorizes Chief Ballard
and Chief Faaumu to temporarily assign police officers from
their respective departments to another county’s police
department. The Hawaiʻi County Charter and HRS Chapter 52D
authorize Chief Ferreira to appoint and supervise police
officers in the County of Hawaiʻi, including those
temporarily assigned to Hawaiʻi Island from Honolulu and
Maui counties.
ordinances of the county and all regulations
made in accordance therewith.
(b) Train, equip, maintain, and supervise the force
of police officers and employees.
. . . .
(e) Have such other powers, duties, and functions
as may be required by the police commission or
provided by law.
(Emphasis added.)
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Id. at 92, 482 P.3d at 555. Thus, the ICA held that “[a]pplying
the plain language of HRS §§ 52D-3, 52D-6, and 78-27, and
Chapter 2 of the Hawaiʻi County Charter, in pari materia . . .
execution and performance of the Agreements and the Delegations
by the Chiefs of Police in this case was authorized by law.”
Id.
Accordingly, the ICA affirmed the circuit court’s
November 12, 2019 Order Granting Motion to Dismiss and Judgment
in favor of the Chiefs of Police. Id. The ICA entered its
corresponding Judgment on Appeal on February 24, 2021. Flores
filed an application for writ of certiorari on April 22, 2021.
II. STANDARDS OF REVIEW
A. Motion to Dismiss
A circuit court order granting a motion to dismiss is
reviewed de novo. Hungate v. Law Office of David B. Rosen,
139 Hawaiʻi 394, 401, 391 P.3d 1, 8 (2017). “A complaint
should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set
of facts in support of his or her claim that would entitle
him or her to relief.” In re Estate of Rogers, 103 Hawaiʻi
275, 280, 81 P.3d 1190, 1195 (2003) (quoting Blair v. Ing,
95 Hawaiʻi 247, 252, 21 P.3d 452, 457 (2001)). Our review
is “strictly limited to the allegations of the complaint,”
which we view in the light most favorable to the plaintiff
and deem to be true. Id. at 280-81, 81 P.3d at 1195-96.
(quoting Blair, 95 Hawaiʻi at 252, 21 P.3d at 457).
However, “the court is not required to accept conclusory
allegations on the legal effect of the events alleged.”
Hungate, 139 Hawaiʻi at 401, 391 P.3d at 8.
Civ. Beat Law Ctr. for the Pub. Int., Inc. v. City & Cnty. of
Honolulu, 144 Hawaiʻi 466, 474, 445 P.3d 47, 55 (2019).
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B. Summary Judgment
If, on a motion asserting the defense numbered (6) to
dismiss for failure of the pleading to state a claim upon
which relief can be granted, matters outside the pleadings
are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment and disposed
of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.
HRCP Rule 12(b).
The appellate court reviews “the circuit court’s grant
or denial of summary judgment de novo.” Querubin v. Thronas,
107 Hawaiʻi 48, 56, 109 P.3d 689, 697 (2005). “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 of
material fact and the moving party is entitled to a judgment as
a matter of law.’” Amfac, Inc. v. Waikiki Beachcomber Inv. Co.,
74 Haw. 85, 104, 839 P.2d 10, 22 (1992) (citing HRCP Rule 56(c)
(1990)) (citation omitted).
C. Statutory Interpretation
“Questions of statutory interpretation are questions
of law to be reviewed de novo under the right/wrong standard.”
Nakamoto v. Kawauchi, 142 Hawaiʻi 259, 268, 418 P.3d 600, 609
(2018).
III. DISCUSSION
On certiorari, Flores argues that the ICA erred by
(1) ignoring the plain language of HRS § 52D-5 and relying on
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HRS §§ 52D-3, 52D-5, 78-27, and CCH Article VII to “effectively
render[] HRS § 52D-5 meaningless”; (2) holding that HRS § 52D-5
did not apply to the facts alleged in Flores’s complaint,
despite the fact that the Delegations cited as authority HRS
§ 52D-5; (3) concluding that HPD and MPD officers were properly
deputized and acting under the authority of HCPD; and
(4) failing to address whether Flores had a private right of
action to challenge the violation of HRS § 52D-5. For the
following reasons, Flores’s arguments lack merit.
A. There is no private right of action under HRS § 52D-5.
The circuit correctly determined that, based on the
legislative history and purpose of HRS § 52D-5, there is no
private right of action under that statute. Here, Flores’s
complaint and the Chiefs of Police’s Motion to Dismiss were
filed pursuant to HRS § 52D-5, which states:
Powers of chief of police outside own county. The chief of
police of each county and any duly authorized subordinates
shall have and may exercise all powers, privileges, and
authority necessary to enforce the laws of the State, in a
county other than the county in and for which the chief has
been appointed, if:
(1) The exercise of such power, privilege, and
authority is required in the pursuit of any
investigation commenced within the county in and
for which the chief has been appointed; and
(2) The concurrence of the chief of police of the
county in which the power, privilege, and authority
sought to be exercised is obtained.
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In his Opposition, Flores contended that declaratory
relief was available under HRS § 632-125 to determine (1) whether
HRS § 52D-5 was applicable; and (2) if HRS § 52D-5 was
applicable, whether the Chiefs of Police violated HRS § 52D-5.
However, Flores cannot bring an action under HRS § 632-1 for
25 HRS § 632-1 (2016) provides:
Jurisdiction; controversies subject to. (a) In cases
of actual controversy, courts of record, within the scope
of their respective jurisdictions, shall have power to make
binding adjudications of right, whether or not
consequential relief is, or at the time could be, claimed,
and no action or proceeding shall be open to objection on
the ground that a judgment or order merely declaratory of
right is prayed for; provided that declaratory relief may
not be obtained in any district court, or in any
controversy with respect to taxes, or in any case where a
divorce or annulment of marriage is sought. Controversies
involving the interpretation of deeds, wills, other
instruments of writing, statutes, municipal ordinances, and
other governmental regulations may be so determined, and
this enumeration does not exclude other instances of actual
antagonistic assertion and denial of right.
(b) Relief by declaratory judgment may be granted in
civil cases where an actual controversy exists between
contending parties, or where the court is satisfied that
antagonistic claims are present between the parties
involved which indicate imminent and inevitable litigation,
or where in any such case the court is satisfied that a
party asserts a legal relation, status, right, or privilege
in which the party has a concrete interest and that there
is a challenge or denial of the asserted relation, status,
right, or privilege by an adversary party who also has or
asserts a concrete interest therein, and the court is
satisfied also that a declaratory judgment will serve to
terminate the uncertainty or controversy giving rise to the
proceeding. Where, however, a statute provides a special
form of remedy for a specific type of case, that statutory
remedy shall be followed; but the mere fact that an actual
or threatened controversy is susceptible of relief through
a general common law remedy, a remedy equitable in nature,
or an extraordinary legal remedy, whether such remedy is
recognized or regulated by statute or not, shall not debar
a party from the privilege of obtaining a declaratory
judgment in any case where the other essentials to such
relief are present.
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declaratory relief unless HRS § 52D-5 provides for a private
right of action. See Alakaʻi Na Keiki, Inc. v. Matayoshi, 127
Hawaiʻi 263, 285, 277 P.3d 988, 1010 (2012) (citing Cnty. of Haw.
v. Ala Loop Homeowners, 123 Hawaiʻi 391, 407 n.20, 235 P.3d 1103,
1119 n.20 (2010)) (“In order for a party to sue for enforcement
under HRS § 632-1, HRS chapter 103F must provide for an express
or implied private right of action.”). Thus, we must determine
whether HRS § 52D-5 creates a private right of action.
This court has noted that “[r]equirements imposed by
statutes do not necessarily give rise to a private right of
action.” Hungate, 139 Hawaiʻi at 405, 391 P.3d at 12 (citing
Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979)). This court
has stated:
In determining whether a private remedy is implicit in a
statute not expressly providing one, several factors are
relevant. First, is the plaintiff one of the class for
whose [e]special benefit the statute was
enacted; . . . that is, does the statute create
a . . . right in favor of the plaintiff? Second, is there
any indication of legislative intent, explicit or implicit,
either to create such a remedy or to deny one? . . . Third,
is it consistent with the underlying purposes of the
legislative scheme to imply such a remedy for the
plaintiff?
Whitey’s Boat Cruises, 110 Hawaiʻi at 312, 132 P.3d at 1223(quoting Reliable Collection Agency, Ltd. v. Cole, 59 Haw. 503,
507, 584 P.2d 107, 109 (1978)) (alterations in original).
Furthermore, “[w]hile each factor is relevant, ‘the key factor’
is whether the legislature ‘intended to provide the plaintiff
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with a private right of action.’” Hungate, 139 Hawaiʻi at 406,
391 P.3d at 13 (quoting Whitey’s Boat Cruises, 110 Hawaiʻi at 313
n.20, 132 P.3d at 1224 n.20).
1. Flores is not part of the class for whose especial
benefit the statute was enacted.
As the Chiefs of Police pointed out in their Motion to
Dismiss, the legislative history of HRS § 52D-5 demonstrates
that the statute was not enacted to allow a private citizen to
bring a claim for a violation of the statute.
The 1971 House Journal Standing Committee Report
provides that:
The purpose of this bill is to add a new section to
Chapter 52, Hawaii Revised States [sic], which would
provide continuity to police investigations from one county
jurisdiction to another. The bill allows enforcement
powers to police chiefs outside their own county if it is
required in pursuit of an investigation which commenced in
their county and also if the concurrence of the chief in
whose county the power is sought to be exercised is first
obtained.
H. Stand. Comm. Rep. No. 703, in 1971 House Journal, at 990.
The Joint Select Committee of Kauaʻi, Maui, Oʻahu, and
Hawaiʻi Representatives noted that:
The purpose of this bill is to add a new section to
provide continuity to police investigations from one
jurisdictional region to another.
. . . .
This new section will continue to protect local
control and assure cooperation through the provisions of
notification to a county chief of police when
investigations are to be pursued within his jurisdiction.
The provisions for crossing county lines is contingent upon
the fact the investigation must commence in the home county
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of the investigator. It also assures protection of local
jurisdictions from encroachment by outside investigators.
H. Stand. Comm. Rep. No. 608, in 1971 House Journal, at 947-48.
The purpose of enacting HRS § 52D-5 was therefore to
“provide continuity to police investigations from one county
jurisdiction to another.” H. Stand. Comm. Rep. No. 703, in 1971
House Journal, at 990. The legislative history of HRS § 52D-5
does not contemplate a private citizen bringing a claim against
the Chiefs of Police for a violation of the statute. See H.
Stand. Comm. Rep. No. 703, in 1971 House Journal, at 990.
Instead, the legislative history discusses “enforcement powers”
of the police chiefs outside of their own jurisdictions. H.
Stand. Comm. Rep. No. 703, in 1971 House Journal, at 990. Thus,
the police chiefs, and not a private citizen such as Flores, are
part of the class for whose especial benefit HRS § 52D-5 was
enacted.
2. There is no indication of legislative intent to create
or deny a private right of action.
The legislative history and text of HRS § 52D-5 do not
indicate any explicit or implicit intent that the statute
provides for a private right of action. A private right of
action is not mentioned anywhere in the legislative history or
text of HRS § 52D-5. See H. Stand. Comm. Rep. No. 703, in 1971
House Journal, at 990; see also H. Stand. Comm. Rep. No. 608, in
1971 House Journal, at 947-48; HRS § 52D-5. Thus, there is no
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indication of an explicit intent to create a private right of
action under HRS § 52D-5.
Furthermore, there is no indication of an implicit
intent to create a private right of action. HRS § 52D-5 and its
legislative history are silent regarding whether the statute was
intended to create a private right of action. See HRS § 52D-5;
see also H. Stand. Comm. Rep. No. 703, in 1971 House Journal, at
990. Although “legislative silence alone is not dispositive,”
strong evidence is necessary to imply a private right of action.
Hungate, 139 Hawaiʻi at 406, 391 P.3d at 13 (citing 1A C.J.S.
Action § 62 (2016)). Flores has not shown strong evidence that
the Legislature intended to create a private right of action in
HRS § 52D-5.26 Therefore, because there does not appear to be an
implicit intent to create a private right of action under HRS
§ 52D-5, we decline to infer a private right of action under
that statute. See Hungate, 139 Hawaii at 406, 391 P.3d at 13
(quoting Touche Ross & Co v. Redington, 442 U.S. 560, 571
(1979)) (“[I]mplying a private right of action on the basis of
[legislative] silence is a hazardous enterprise, at best.”
(alterations in original)).
26 Flores contended that “by prohibiting the unauthorized and unlawful
exercise of police powers outside an officer’s jurisdiction, [HRS §] 52D-5
implicitly created a private right of action to seek declaratory relief.”
Additionally, Flores argued that “[i]f the legislature in fact intended to
preclude judicial review, then that preclusion violates the separation of
powers doctrine.”
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3. It is inconsistent with the underlying purposes of the
legislative scheme to imply a private right of action.
As discussed above, the purpose of HRS § 52D-5 is to
“provide continuity to police investigations from one county
jurisdiction to another.” H. Stand. Comm. Rep. No. 703, in 1971
House Journal, at 990; see also H. Stand. Comm. Rep. No. 608, in
1971 House Journal, at 947-48; HRS § 52D-5. In other words, the
Chiefs of Police correctly pointed out in their Motion to
Dismiss that “[t]he underlying purpose of [HRS] § 52D-5 is to
ensure cooperative, mutual aid and assistance between the
counties’ chiefs of police to conduct investigations in each
other’s respective jurisdictions.” Implying a private right of
action under HRS § 52D-5 would be inconsistent with the
statute’s legislative scheme because allowing a private
individual to sue police chiefs would interfere with the ability
of police from different jurisdictions to cooperate and provide
continuity to police investigations. Thus, implying a private
right of action would not be consistent with the underlying
purposes of HRS § 52D-5.
Flores filed his complaint seeking declaratory relief
pursuant to HRS § 52D-5. However, the legislative history of
HRS § 52D-5 demonstrates that the statute does not provide
Flores with a private right of action. In turn, the circuit
court properly granted the Chiefs of Police’s Motion to Dismiss
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because Flores was not entitled to declaratory relief under
HRS § 632-1.
B. The ICA correctly determined that mutual aid is permitted.
Although the ICA could have affirmed the circuit
court’s Order Granting Motion to Dismiss because HRS § 52D-5
does not create a private right of action, the ICA correctly
determined that mutual aid between different counties is
permitted. According to Flores, a police officer may only
exercise police powers in another county when both prongs of HRS
§ 52D-5 are satisfied, meaning that (1) the officer is pursuing
an investigation originating in the “sending” jurisdiction and
(2) the chief of police of the “receiving” jurisdiction
consents.
However, nothing in the plain language of HRS § 52D-5
indicates that the statute identifies the only scenario in which
a police officer may exercise police authority in another
jurisdiction. Rather, HRS § 52D-5 describes a specific scenario
in which it is permissible for a chief of police or an
authorized subordinate to exercise the authority of the sending
county in another county. See HRS § 52D-5.
In addition, Flores’s interpretation ignores the
practical need for mutual aid – a necessity that the Legislature
recognized and provided for in other statutes. See HRS § 78-27
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(providing for the temporary inter-governmental assignment of
employees by agreement); HRS § 127A-1227 (vesting county mayors
with authority to “develop mutual aid plans and agreements for
emergency management” between counties for the provision of
necessary services, including police services). Furthermore, as
the IMLA pointed out, mutual aid is an important tool to enable
state agencies “to access additional resources when the need
arises[]” and helps facilitate a timely response to emergencies.
Thus, Flores’s interpretation that HRS § 52D-5 limits all out-
of-county police action and mutual aid is without merit, and the
ICA correctly determined that mutual aid between police officers
of different counties is permitted under Hawaiʻi law.
IV. CONCLUSION
The legislative history of HRS § 52D-5, which was the
basis of Flores’s complaint, demonstrates that the statute does
not provide for a private right of action. Thus, the circuit
court properly dismissed Flores’s complaint. In addition, as
held by the ICA, mutual aid between police departments of
different counties is permitted under Hawaiʻi law.
27 The Legislature described the policy and purpose of Chapter 127A
Emergency Management as: “It is the intent of the legislature to provide for
and confer comprehensive powers for the purposes stated herein. This chapter
shall be liberally construed to effectuate its purposes[.]” HRS § 127A-1(c)
(Supp. 2019).
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Accordingly, we affirm the ICA’s February 24, 2021
Judgment on Appeal, which affirmed the circuit court’s
November 12, 2019 Order Granting Motion to Dismiss.
Peter S.R. Olson /s/ Mark E. Recktenwald
for petitioner E. Kalani Flores
/s/ Paula A. Nakayama
Robert M. Kohn
/s/ Sabrina S. McKenna
(Ernest H. Nomura and
Nicolette Winter with him /s/ Michael D. Wilson
on the briefs) for
respondent Arthur Logan in his /s/ Todd W. Eddins
capacity as Chief of Police of
the City and County
of Honolulu
Peter A. Hanano
for respondent John Pelletier
in his capacity as Chief of
Police of Maui County
Lerisa L. Heroldt
(Laureen L. Martin with her
on the briefs) for respondent
Paul Ferreira in his capacity as
the Chief of Police of the
County of Hawaiʻi
Alan D. Cohn* (Richard F.
Nakamura, Steven L. Goto and
Jason E. Meade*, with him on the
briefs) for amicus curiae
International Municipal Lawyers
Association, Inc.
Kimberly T. Guidry and
Kalikoʻonālani D. Fernandes
for amicus curiae State of
Hawaiʻi
*admitted pro hac vice
35