Flores v. Ballard.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JAN-2021
10:24 AM
Dkt. 111 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
E. KALANI FLORES, Plaintiff-Appellant,
v.
SUSAN BALLARD in her capacity as Chief of Police
of the City and County of Honolulu;
PAUL FERREIRA in his capacity as the Chief of Police
of the County of Hawaii Police Department;
TIVOLI FAAUMU in his capacity as Chief of Police
of Maui County, Defendants-Appellees,
and
JOHN DOES 1-100, JANE DOES 1-100, DOE CORPORATIONS 1-100,
DOE PARTNERSHIPS 1-100, DOE ENTITIES 1-100,
and RICHARD ROES 1-100, MARY ROES 1-100,
ROE CORPORATIONS 1-100, ROE PARTNERSHIPS 1-100,
ROE ENTITIES 1-100, Defendants
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC191000190)
JANUARY 27, 2021
GINOZA, CHIEF JUDGE, HIRAOKA AND NAKASONE, JJ.
OPINION OF THE COURT BY HIRAOKA, J.
With one exception, each county in Hawai#i has its own
police department.1 This case presents the issue of whether the
police chief of one county can utilize police officers from
1
The County of Kalawao, commonly known as the Kalaupapa Settlement
on the island of Moloka#i, is under the jurisdiction and control of the Hawai#i
Department of Health. Hawaii Revised Statutes § 326-34.
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another county to enforce the law in the chief's county. We
hold: (1) the temporary assignment of police officers from one
county to another is authorized by Hawaii Revised Statutes (HRS)
§ 78-27 (2012); and (2) HRS Chapter 52D and the Hawai#i County
Charter authorize the chief of the Hawai#i County Police Depart-
ment (HCPD) to appoint and supervise police officers from other
counties temporarily assigned to Hawai#i County.
BACKGROUND
This case arises from the controversy surrounding the
construction of the Thirty Meter Telescope (TMT) at the summit of
Mauna Kea, located on Hawai#i Island. Mauna Kea (lit., white
mountain) is the highest mountain in the state, rising 13,796
feet above sea level. Mary Kawena Pukui, Samuel H. Elbert &
Esther T. Mo#okini, Place Names of Hawai#i 148-49 (Univ. of Haw.
Press 1976). Almost all of the land above the 12,000-foot
elevation comprises the Mauna Kea Science Reserve, which consists
of a 10,763-acre cultural and natural preserve and a 525-acre
Astronomy Precinct. In re Conservation Dist. Use Application
(CDUA) HA-3568, 143 Hawai#i 379, 385, 431 P.3d 752, 758 (2018),
as amended (Nov. 5, 2018 & Nov. 30, 2018), recon. granted in
part, denied in part, 143 Hawai#i 327, 430 P.3d 425 (Table)
(2018), and recon. denied sub nom. In re Contested Case Hearing
re Conservation Dist. Use Application (CDUA) HA-3568, 143 Hawai#i
328, 430 P.3d 426 (Table) (2018) (In re TMT CDUA).
The Hawai#i Board of Land and Natural Resources (BLNR)
leased the Mauna Kea Science Reserve to the University of Hawai#i
in 1968. Flores v. Bd. of Land & Nat. Res., 143 Hawai#i 114,
117, 424 P.3d 469, 472 (2018) (Flores I). The lease allows the
University to use the land "as a scientific complex, including
. . . an observatory, and as a scientific reserve being more
specifically a buffer zone to prevent the intrusion of activities
inimical to said scientific complex." Id. As of mid–2010,
13 astronomical facilities were located on Mauna Kea. Mauna Kea
Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai#i 376, 381, 363
P.3d 224, 229 (2015). According to the University, observatories
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are attracted to Mauna Kea "principally because of the superb
viewing conditions that its high-altitude/mid-oceanic location
provides[.]" Id.In 2014 the University asked for BLNR's consent to
sublease a portion of the Mauna Kea Science Reserve to TMT
International Observatory LLC for construction of the TMT.
Flores I, 143 Hawai#i at 116, 424 P.3d at 471. BLNR consented to
the sublease on April 9, 2015. Id. at 118, 424 P.3d at 473.
BLNR's consent was challenged. The Hawai#i Supreme Court
validated the consent in Flores I.
In September 2017, BLNR issued a conservation district
use permit for the TMT. In re TMT CDUA, 143 Hawai#i at 384, 431
P.3d at 757. The permit was challenged. In November 2018, the
supreme court affirmed BLNR's issuance of the permit. Id. at
409, 431 P.3d at 782. Thus, construction of the TMT — which had
been delayed for years by legal challenges to the sublease and to
the conservation district use permit – was allowed to proceed.
At some point before July 16, 2019, a great number of
people assembled at Pu#u Huluhulu, near the road leading to the
Mauna Kea summit. They gathered to protest construction of the
TMT by, among other things, blocking access to construction
equipment and vehicles. The large scale of the protest strained
HCPD's resources. The chief of HCPD, Defendant-Appellee Paul
Ferreira (Chief Ferreira), asked Defendants-Appellees Susan
Ballard (Chief of the Honolulu Police Department (HPD)) (Chief
Ballard) and Tivoli Faaumu (Chief of the Maui County Police
Department (MPD)) (Chief Faaumu) to support HCPD operations
relating to the TMT construction project.
On Tuesday, July 16, 2019, HPD and MPD officers arrived
on Hawai#i Island to provide the requested support. The next day
Plaintiff-Appellant E. Kalani Flores (Flores) filed a "Complaint
for Declaratory and Injunctive Relief" with the Circuit Court of
the Third Circuit, challenging the presence and legal authority
of non-Hawai#i-County law enforcement personnel on Hawai#i Island.
Flores's complaint named Chief Ballard, Chief Faaumu, and Chief
Ferreira (collectively, the Chiefs of Police) as defendants.
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PROCEDURAL HISTORY
Complaint Allegations
Flores's complaint made the following allegations:
Flores is a Native Hawaiian.2 He lives on Hawai#i Island. He
holds Mauna Kea — an important site for Native Hawaiians to
conduct traditional and customary cultural practices — to be
sacred.3 He has performed traditional Native Hawaiian ceremonies
on Mauna Kea for a number of years.
On July 13, 2019, Flores and others assembled at Pu#u
Huluhulu to express reverence for Mauna Kea and opposition to
construction of the TMT. Flores claims that the government
prevented him and other members of the public from accessing
Mauna Kea, while permitting telescope employees to travel to the
summit. As described by Flores's complaint, there "was a heated
day of standoffs and negotiations between authorities and
opponents of the Thirty Meter Telescope." Although the day ended
on "relatively peaceful terms," the news media reported on a
statement issued by HPD:
HPD officers will be going to Hawaii Island at the request
of the Hawaii Police Department. They will assist Hawaii
police officers in keeping roadways clear for the movement
of construction equipment and vehicles.
Flores's complaint alleged that HPD and MPD officers
went to Hawai#i Island to exercise police power in violation of
HRS § 52D-5:
43. Defendants have violated HRS § 52D-5.
44. Based upon the above, the Honolulu Police
Officers assisting the Hawaii County Police as described
2
The term "Native Hawaiian" refers to one "whose ancestors were
natives of the Hawaiian Islands prior to 1778, without regard to blood
quantum[.]" In re TMT CDUA, 143 Hawai#i at 384 n.1, 431 P.3d at 757 n.1
(citations omitted).
3
In Mauna Kea Anaina Hou, the Hawai#i Supreme Court effectively
recognized that the interest of Native Hawaiians in pursing traditional and
customary cultural practices on Mauna Kea constitutes a property interest for
purposes of triggering constitutional due process protections. Flores I, 143
Hawai#i at 126, 424 P.3d at 481.
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above have no lawful authority as police officers on Hawai#i
Island. The same is true of Maui County Police officers.
45. Thus, Defendants, and all those acting under the
color of Defendants' authority, lack the same authority that
Hawaii County Police officers have on Hawaii [sic] Island
to:
a. Make arrests
b. Investigate; and
c. Conduct traffic control
and any other "police" related business.
. . . .
49. In addition to the apparent police activity in
contradiction of HRS §54D-5 [sic] as noted above, there is
potential that the "off island" county police officers [sic]
police presence will create confusion and unrest as ordinary
citizens will question said officers' authority.
Flores sought a judgment declaring that the Chiefs of Police
failed to comply with HRS § 52D-5, a temporary restraining order,
and preliminary and permanent injunctions prohibiting the Chiefs
of Police from violating the statute.
Motion to Dismiss and Joinders
Chief Ballard filed a motion to dismiss Flores's
complaint (MTD) under Rule 12(b)(6) of the Hawai#i Rules of Civil
Procedure (HRCP).4 She argued: (1) there is no private right of
action for alleged violation of HRS § 52D-5; and (2) Flores's
claim was moot because HPD officers were no longer on Hawai#i
Island for any purpose relating to the TMT.
Chief Faaumu joined in Chief Ballard's MTD. He agreed
with the no-private-right-of-action argument, and that Flores's
claim was moot because MPD officers were no longer on Hawai#i
Island for any purpose relating to the TMT.
4
HRCP Rule 12 provides, in relevant part:
(b) How presented. . . . [T]he 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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Chief Ferreira also filed a joinder. He agreed with
the no-private-right-of-action argument, but took no position on
the mootness argument because it did not apply to him as Chief of
HCPD.
Flores's Opposition
Flores filed a memorandum in opposition to Chief
Ballard's MTD. He argued: (1) there was an implicit or implied
private right of action for violation of HRS § 52D-5; and
(2) exceptions to the mootness doctrine applied. Attached to the
memorandum were declarations by Flores and by Flores's counsel,
and eight exhibits.
Chief Ballard's Reply
Chief Ballard filed a reply memorandum. She objected
to the declarations and exhibits submitted by Flores. She also
made the new argument that HRS § 52D-5 was not triggered at all,
because HRS § 78-27 authorized the actions taken by HPD.
Flores's Supplemental Filing
Flores filed an ex parte motion for leave to file a
supplemental declaration and three additional exhibits in
opposition to Chief Ballard's MTD, copies of which were appended
to the ex parte motion. The circuit court granted Flores's ex
parte motion by order entered on September 19, 2019.
Hearing, Order, and Judgment
Chief Ballard's MTD and the other chiefs' joinders were
heard on September 20, 2019.5 Flores responded to the argument
about HRS § 78-27 raised in Chief Ballard's reply memorandum.
After hearing argument, the circuit court ruled:
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.
5
The Honorable Henry T. Nakamoto presided.
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The circuit court did not rule on Chief Ballard's objections to
Flores's original declarations and exhibits. None of the Chiefs
of Police objected to the declaration and exhibits attached to
Flores's ex parte motion to supplement.
On November 12, 2019, the circuit court entered its
"Order Granting Defendant Susan Ballard's Motion to Dismiss"
(Order Granting MTD). The Order Granting MTD stated, in relevant
part:
4. The Court concludes, accordingly, that there is
no private right of action pursuant to Haw. Rev. Stat.
§ 52D-5.
The Order Granting MTD did not contain a ruling on Chief
Ballard's evidentiary objections or otherwise exclude the
declarations or exhibits presented by Flores.
Also on November 12, 2019, the circuit court entered a
Judgment in favor of the Chiefs of Police and against Flores.
Flores filed this appeal. We affirm, but for reasons other than
those stated by the circuit court.
STANDARDS OF REVIEW
Motion to Dismiss Converted
to Motion for Summary Judgment
A circuit court's order granting an HRCP Rule 12(b)(6)
motion to dismiss is reviewed de novo, using the same standard
applied by the circuit court:
[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
[their] claim that would entitle [them] to relief.
The appellate court must therefore view a plaintiff's
complaint in a light most favorable to [them] in order
to determine whether the allegations contained therein
could warrant relief under any alternative theory.
For this reason, in reviewing a circuit court's order
dismissing a complaint the appellate court's consider-
ation is strictly limited to the allegations of the
complaint, and the appellate court must deem those
allegations to be true.
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Bank of Am., N.A. v. Reyes-Toledo, 143 Hawai#i 249, 256-57, 428
P.3d 761, 768-69 (2018) (cleaned up)6.
In this case, however, Flores opposed Chief Ballard's
MTD by presenting matters outside the pleadings. Under such
circumstances HRCP Rule 12(b) provides, in relevant part:
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 pleading
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.
The circuit court did not exclude the declarations or exhibits
presented by Flores. Accordingly, we apply the standard of
review applicable to a motion for summary judgment under HRCP
Rule 56.
The grant or denial of summary judgment is reviewed de
novo. Nozawa v. Operating Engineers Local Union No. 3, 142
Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018). Summary judgment
is appropriate if the pleadings, depositions, answers to inter-
rogatories, 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 moving party is entitled to a judgment as a
matter of law. Id. at 342, 418 P.3d at 1198. 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. Id.
Chief Ballard did not submit declarations or exhibits
with her reply memorandum, nor did she file her own motion for
summary judgment. When a plaintiff converts a defendant's HRCP
Rule 12(b)(6) motion to dismiss into a motion for summary
judgment by presenting matters outside the pleadings that are not
6
The "cleaned up" parenthetical tells readers that extraneous
material (e.g., internal brackets, ellipses, quotation marks, citations, foot-
note reference numbers, and changes in capitalization) was removed from a
quotation for readability, and that none of it mattered for understanding the
quotation or evaluating its weight. See Jack Metzler, Cleaning Up Quotations,
18 J. App. Prac. & Process 143, 147 (2017).
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excluded by the circuit court — without filing a counter-motion
for summary judgment — and the moving defendant submits no
matters outside the pleadings in response, the court views the
facts alleged in the complaint and the evidence presented by the
plaintiff (and the inferences to be drawn therefrom) in the light
most favorable to the plaintiff. Andrade v. County of Hawai#i,
145 Hawai#i 265, 270, 451 P.3d 1, 6 (App. 2019). "The court need
not, however, accept conclusory allegations concerning the legal
effect of the facts the party has alleged or presented." Id. at
270 n.6, 451 P.3d at 6 n.6 (citation omitted). "When an asser-
tion in an affidavit expresses an inference without setting forth
the underlying facts on which the conclusion is based or states a
conclusion that is not reasonably drawn from the underlying
facts, the assertion is considered conclusory and cannot be
utilized in support of or against a motion for summary judgment."
Id. (cleaned up) (quoting Nozawa, 142 Hawai#i at 339, 418 P.3d at
1195).
If the court concludes (based on the factual
allegations in the complaint and the evidence presented by the
plaintiff) that the moving defendant is entitled to judgment as a
matter of law, the court should grant summary judgment in favor
of the defendant; if not, the court should deny the defendant's
motion. Andrade, 145 Hawai#i at 270-71, 451 P.3d at 6-7. Where
the plaintiff does not file their own motion for summary
judgment, the defendant's failure to controvert the evidence
presented by the plaintiff in opposition to an HRCP Rule 12(b)(6)
motion to dismiss does not constitute a concession or admission.
Id. at 271 n.8, 451 P.3d at 7 n.8.
Statutory Interpretation
"Interpretation of a statute is a question of law which
we review de novo." Reyes-Toledo, 143 Hawai#i at 257, 428 P.3d
at 769 (citations omitted).
The fundamental starting point of statutory inter-
pretation is the language of the statute itself, and where
the statutory language is unambiguous, our duty is to give
effect to its plain and obvious meaning. To effectuate a
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statute's plain language, its words must be taken in their
ordinary and familiar signification, and regard is to be had
to their general and popular use. In conducting a plain
meaning analysis, [a] court may resort to legal or other
well accepted dictionaries as one way to determine the
ordinary meaning of certain terms not statutorily defined.
It is also a canon of construction that statutes that
are in pari materia may be construed together. Thus, laws
in pari materia, or upon the same subject matter, shall be
construed with reference to each other. What is clear in
one statute may be called upon in aid to explain what is
doubtful in another.
Wells Fargo Bank, N.A. v. Omiya, 142 Hawai#i 439, 449–50, 420
P.3d 370, 380–81 (2018) (cleaned up).
DISCUSSION
Flores's complaint specifically alleged that the Chiefs
of Police violated HRS § 52D-5. The Order Granting MTD was
specifically based upon the circuit court's conclusion "that
there is no private right of action pursuant to Haw. Rev. Stat.
§ 52D-5." On appeal Flores asserts a number of legal theories
under which a private right of action for violation of HRS § 52D-
5 could be recognized. As we explain below, HRS § 52D-5 is an
enabling statute that was never properly implicated based upon
the evidence in the record. Because the circuit court correctly
disposed of the case, however, the result will not be disturbed
on the ground that the circuit court gave the wrong reason for
its ruling. See, e.g., Tauese v. State, Dep't of Labor & Indus.
Relations, 113 Hawai#i 1, 15 n.6, 147 P.3d 785, 799 n.6 (2006)
(citing cases). In 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. (citations omitted).
But we must first address Chief Ballard's and Chief
Faaumu's arguments that Flores's claims are moot because HPD and
MPD officers are no longer present on Hawai#i Island to exercise
police power. Although it did not form the basis for the circuit
court's decision and (as Flores points out) the Chiefs of Police
do not argue mootness in their joint answering brief, "mootness
is an issue of subject matter jurisdiction." Hamilton ex rel.
Lethem v. Lethem, 119 Hawai#i 1, 4, 193 P.3d 839, 842 (2008).
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Every court must determine "as a threshold matter whether it has
jurisdiction to decide the issue presented." Pele Def. Fund v.
Puna Geothermal Venture, 77 Hawai#i 64, 67, 881 P.2d 1210, 1213
(1994) (citation omitted).
Flores's claims are moot, but two
exceptions to the mootness doctrine apply.
The mootness doctrine is said to encompass the circumstances
that destroy the justiciability of a suit previously suit-
able for determination. Put another way, the suit must
remain alive throughout the course of litigation to the
moment of final appellate disposition. Its chief purpose is
to assure that the adversary system, once set in operation,
remains properly fueled. The doctrine seems appropriate
where events subsequent to the judgment of the trial court
have so affected the relations between the parties that the
two conditions for justiciability relevant on appeal —
adverse interest and effective remedy — have been
compromised.
Hamilton, 119 Hawai#i at 5, 193 P.3d at 843 (citations omitted).
The parties do not dispute that the HPD and MPD officers who had
been supporting HCPD's TMT protest response have left Hawai#i
Island. That makes Flores's appeal moot; the Chiefs of Police
are no longer doing anything that a court could enjoin. But
there are exceptions to the mootness doctrine — the "capable of
repetition, yet evading review" exception and the "public
interest" exception — that apply here.7 See id.The phrase, "capable of repetition, yet evading review,"
means that "a court will not dismiss a case on the grounds
of mootness where a challenged governmental action would
evade full review because the passage of time would prevent
any single plaintiff from remaining subject to the
restriction complained of for the period necessary to
complete the lawsuit."
Id. (citation omitted). The "capable of repetition, yet evading
review" exception applies because Chief Ballard and Chief Faaumu
both declined to give the "assurance" requested by Flores's
counsel that HPD or MPD would not return to Hawai#i Island in the
future. Although TMT construction has paused because of the
7
A third exception, the "collateral consequences" exception, was
adopted by the supreme court in Hamilton but is not applicable here. See
generally 119 Hawai#i at 7-10, 193 P.3d at 846-48.
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COVID-19 pandemic and the TMT protesters have withdrawn from Pu#u
Huluhulu, there is no indication in the record that the situation
could or would not be repeated once construction resumes.
When analyzing the public interest exception, [a] court
looks to (1) the public or private nature of the question
presented, (2) the desirability of an authoritative deter-
mination for future guidance of public officers, and (3) the
likelihood of future recurrence of the question.
Id. at 6-7, 193 P.3d at 844-45 (cleaned up). All the elements of
the "public interest" exception are present in this case. We
have jurisdiction to decide this appeal.
HRS § 52D-5 is not implicated by the
facts alleged in Flores's complaint
or established by Flores's evidence.
HRS § 52D-5 (2012) provides:
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.
(Underscoring added.) The statute enables a police chief to ask
a police chief in another county to allow the requesting chief to
exercise police authority in the other chief's county to pursue
an investigation originating in the requesting chief's county.
We need not decide whether there is a private right of
action for an alleged violation of HRS § 52D-5 because the
statute was not violated. As Flores correctly points out, this
case does not involve an "investigation commenced within the
county in and for which" Chief Ballard or Chief Faaumu were
appointed. HRS § 52D-5 does not authorize Chief Ballard or Chief
Faaumu, even with the concurrence of Chief Ferreira, to send HPD
or MPD officers to Hawai#i Island to exercise police power in
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response to the TMT protest on Hawai#i Island. But that does not
mean any of the Chiefs of Police violated HRS § 52D-5.
The police action of which Flores complained did not
arise because Chief Ballard or Chief Faaumu asked Chief Ferreira
for permission to send officers to Hawai#i Island to respond to
TMT protesters. It was Chief Ferreira who asked the other chiefs
to send officers to Hawai#i Island to assist HCPD in handling
matters on Hawai#i Island that strained HCPD's resources.
Neither Chief Ballard nor Chief Faaumu purported to exercise
police authority in the County of Hawai#i "in the pursuit of any
investigation commenced within" the City and County of Honolulu
or the County of Maui. Viewing the allegations and facts in the
light most favorable to Flores, HRS § 52D-5 was never implicated,
much less violated. It 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, whether or not
a private right of action for violation of the statute exists.
HRS § 78-27 authorizes temporary assignment
of police officers from one county to another.
The Chiefs of Police contend that their respective
actions were taken pursuant to materially identical inter-
departmental assignment agreements (Agreements), one signed by
Chief Ferreira and Chief Ballard and the other by Chief Ferreira
and Chief Faaumu. Flores presented both Agreements in opposition
to Chief Ballard's MTD. The Agreements were not excluded by the
circuit court. The Agreements are properly before us on this
appeal.
The 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 [sic] 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 inter-
departmental assignment and this employment is made under
the provisions of Hawaii Revised Statutes [§] 78-27(a-d).
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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 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.
(Underscoring added.)
Flores acknowledges that Act 253 of the 2000 legis-
lative session, which resulted in the enactment of HRS § 78-27,
mentions "police" three times.8 HRS § 78-27 thus contemplates
the police department of one county, as a "sending agency,"
8
Section 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.
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temporarily assigning officers to the police department of
another county, as the "receiving agency"; the statute protects
the temporarily assigned police officers' civil service, col-
lective bargaining, workers' compensation, and other employment
rights and benefits during the temporary assignment.
The 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
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.
The Chiefs of Police are correct that the temporary assignment of
HPD and MPD officers to Hawai#i Island to support HCPD's TMT-
related operations was authorized by HRS § 78-27. But HRS § 78-
27 itself does not authorize a police officer sworn in one county
to exercise police power in another county. For that proposition
we must look to other applicable law.
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Chief Ferreira was authorized to delegate
police power to HPD and MPD officers who
were temporarily assigned to HCPD.
Flores agrees that HRS Chapter 78 "concerns employee
benefits, rights, [and] exchange of public employees" and
acknowledges that police officers are mentioned in the law, but
explains that his "lawsuit was not about mutual aid agreements."
He maintains that "[t]he gravamen of [his] lawsuit is that the
ability to detain and/or arrest someone is a distinct power and
authorization conferred upon an individual by the government."
He argues — correctly — that nothing in HRS Chapter 78 or its
legislative history specifies that "the law was created to allow
police officers of the respective counties to exercise their
police powers beyond their home counties." This requires us to
examine whether Chief Ferreira had the authority to grant police
powers to HPD and MPD officers temporarily assigned to HCPD.
The Agreements each include a "Delegation of Police
Authority" signed by Chief Ferreira (Delegations). They state:
Under the authority of the Chief of Police, of Hawai#i
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 Hawai#i county 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 Hawai#i County Police Chief or his
designee. This delegation of Police authority shall be
effective from July 16, 2019 until the end of police
operations for this project as deemed necessary by the
Hawai#i County Chief of Police.
The citation to HRS § 52D-5 was inapt. As discussed above, HRS
§ 52D-5 does not apply to the circumstances described by the
Delegations. But that does not mean Chief Ferreira's delegation
of police powers within Hawai#i County to HPD and MPD officers
was not authorized.
Chief Ferreira is the Chief of HCPD. His authority as
chief of police is conferred by state statute and county charter.
HRS § 52D-3 (2012) provides:
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The chief of police shall have the powers and duties as
prescribed by law, the respective county charter, and as
provided by this chapter.
Chapter 2 of the Hawai#i County Charter (2018)9 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 ordinances of the county
and all regulations made in accordance
therewith.
(b) Train, equip, maintain, and supervise the force
of police officers and employees.
(c) Promulgate rules and regulations for the
organization and administration of the police
force.
(d) Make periodic reports to the police commission
about the activities of the police department
and about actions taken on cases investigated by
the police commission.
(e) Have such other powers, duties, and functions as
may be required by the police commission or
provided by law.
(Underscoring added.) 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.
9
Although the 2020 Hawai#i County Charter is now in effect, there
were no substantive amendments to the sections discussed in this opinion. See
Charter of the County of Hawai#i §§ 7-2.1, 7-2.4 (2020),
https://records.hawaiicounty.gov/weblink/DocView.aspx?dbid=1&id=109506&cr=1.
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(Underscoring added.)
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 Hawai#i Island. HRS
§ 78-27 also authorizes Chief Ballard and Chief Faaumu to tempo-
rarily assign police officers from their respective departments
to another county's police department. The Hawai#i County
Charter and HRS Chapter 52D authorize Chief Ferreira to appoint
and supervise police officers in the County of Hawai#i, including
those temporarily assigned to Hawai#i Island from Honolulu and
Maui counties. Applying the plain language of HRS §§ 52D-3,
52D-6, and 78-27, and Chapter 2 of the Hawai#i County Charter, in
pari materia, we hold that execution and performance of the
Agreements and the Delegations by the Chiefs of Police in this
case was authorized by law.
CONCLUSION
The presence of HPD and MPD police officers on Hawai#i
Island to support HCPD's TMT-related operations, at the request
and under the supervision of the Chief of the HCPD, was a valid
exercise of police power under the Hawai#i County Charter, HRS
Chapter 52, and HRS § 78-27. The Order Granting Defendant Susan
Ballard's Motion to Dismiss and the Judgment entered by the
Circuit Court of the Third Circuit on November 12, 2019, are
affirmed.
/s/ Lisa M. Ginoza
On the briefs: Chief Judge
Peter S.R. Olson, /s/ Keith K. Hiraoka
for Plaintiff-Appellant. Associate Judge
Ernest H. Nomura, /s/ Karen T. Nakasone
Robert M. Kohn, Associate Judge
Nicolette Winter,
Deputies Corporation Counsel,
for Defendant-Appellee
Susan Ballard.
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Peter A. Hanano,
Deputy Corporation Counsel,
for Defendant-Appellee
Tivoli Faaumu.
Laureen L. Martin,
Deputy Corporation Counsel,
for Defendant-Appellee
Paul Ferreira.
Richard F. Nakamura,
Steven L. Goto,
Alan D. Cohn, pro hac vice,
Jason E. Meade, pro hac vice,
for Amicus Curiae International
Municipal Lawyers Association, Inc.
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