Flores v. Logan

151 Hawai‘i 357

513 P.3d 423

E. Kalani FLORES, Petitioner/Plaintiff-Appellant,

v.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 Hawai‘i Police Department; John Pelletier in His Capacity as Chief of Police of Maui County, Respondents/Defendants-Appellees.¹

SCWC-19-0000841

Supreme Court of Hawai‘i.

JULY 12, 2022

Peter S.R. Olson for petitioner E. Kalani Flores

Robert M. Kohn (Ernest H. Nomura and Nicolette Winter with him on the briefs) for respondent Arthur Logan in his 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 Hawai‘i

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 Kaliko‘onalani D. Fernandes for amicus curiae State of Hawai‘i

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, located on the Island of Hawai‘i. 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 Hawai‘i County Police Department (HCPD) within the County of Hawai‘i. The Circuit Court of the Third Circuit (circuit court) determined that Hawai‘i 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 Hawai‘i 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.

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 Hawai‘i to the TMT International Observatory for the purpose of constructing the TMT. Flores v. Bd. of Land & Nat. Res., 143 Hawai‘i 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 Pu‘u Huluhulu near the access road to Mauna Kea's summit after police officers blocked public access to Mauna Kea's summit. At Pu‘u Huluhulu, Flores and the group engaged in 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 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 Hawai‘i to provide support to HCPD. Chief Ferreira deputized the assisting officers from HPD and MPD and instructed 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 Hawai‘i. Flores's complaint alleged that the Chiefs of Police violated HRS § 52D-5⁶ by using HPD and MPD officers to assist HCPD and that the HPD and MPD officers lacked legal authority to exercise police powers within the County of Hawai‘i. 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 Hawai‘i; (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 Hawai‘i 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 Hawai‘i 302, 312, 132 P.3d 1213, 1223 (2006), as corrected (Apr. 25, 2006), Chief Ballard 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 Hawai‘i 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 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 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 Hawai‘i. 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

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