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Oral Argument Before the Hawaii Supreme Court

No. SCWC-12-0000505, Thursday, December 5, 2013, 10 a.m.

UNITED PUBLIC WORKERS, AFSCME, Local 646, AFL-CIO, Petitioner/Plaintiff-Petitioner/Plaintiff-Appellant, vs. NEIL ABERCROMBIE, Governor, State of Hawai`i; KALBERT K. YOUNG, Director, Department of Budget and Finance, State of Hawai`i; BARBARA A. KRIEG, Director, Department of Human Resources Development, State of Hawai`i; Ted Sakai, Director, Department of Public Safety, State of Hawaiʻi; Doe Defendants 1-10 (2009-045), Respondents/Defendants-Appellees.

[Note: Pursuant to HRAP Rule 43(c), Neil Abercrombie has been substituted automatically for Linda Lingle; Kalbert K. Young for Georgiana Kawamura; Barbara A. Krieg for Marie Laderta; Ted Sakai for Clayton Frank. UPW also listed Linda Lingle’s Chief Policy Advisor, Linda Smith, as a Defendant. This title does not exist in Governor Abercrombie’s cabinet.]

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813


Attorneys for Petitioner/Plaintiff-Appellant:

Herbert R. Takahashi, Rebecca L. Covert, and Davina W. Lam of Takahashi and Covert

Attorneys for Respondents/Defendants-Appellees:

James E. Halvorson and Richard H. Thomason, Deputy Attorneys General

NOTE: Order accepting Application for Writ of Certiorari, filed 10/17/13.


[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner/Defendant-Appellant United Public Workers, AFSCME, Local 646, AFL-CIO (UPW), on behalf of the employees it represents, timely filed an application for writ of certiorari (Application) seeking review of the ICA’s July 17, 2013 Judgment on Appeal, entered pursuant to its June 18, 2013 Memorandum Opinion, which vacated the Circuit Court of the First Circuit’s Order Granting Defendants’ Second Motion to Dismiss Plaintiff’s Complaint Filed September 16, 2009, and May 15, 2012 Final Judgment.

This case arises out of then-Governor Linda Lingle’s decision to furlough all state employees for three days per month, and UPW’s subsequent lawsuit challenging the furloughs (Furlough Lawsuit). The instant case stems from UPW’s complaints filed with both the Hawai`i Labor Relations Board (HLRB) and the circuit court. UPW alleged in both complaints that Governor Lingle and her administration implemented a reduction in force (RIF) that discharged approximately 1,100 State employees in retaliation for the Furlough Lawsuit. In addition, UPW alleged that the State was violating Hawaii’s civil service laws and merit principles by privatizing positions historically and customarily performed by civil servants, such as the housing of Kulani Correctional Facility inmates in mainland prisons upon the State’s decision to close the Facility.

In the HLRB complaint, UPW alleged that both the RIF and the privatization were “prohibited practices” under Hawai`i Revised Statutes (HRS) section 89-13(a). In the circuit court complaint, UPW alleged that (1) the RIF violated the Hawai`i Whistleblower’s Protection Act and Article I, § 4 of the Hawai`i Constitution and (2) the privatization was a violation of Hawaii’s civil service laws and merit principles.

The circuit court concluded that all of UPW’s claims were “prohibited practices” within the exclusive, original jurisdiction of the HLRB pursuant to HRS section 89-14. The circuit court held that the statutory scheme mandated prohibited practice claims to be first heard to conclusion by the HLRB. The HLRB’s decision would then be subject to judicial review by a court in its appellate capacity. To the extent that any of UPW’s claims raised constitutional or statutory claims over which the HLRB lacked subject matter jurisdiction, the circuit court held that the HLRB must be given the opportunity to resolve those claims within its jurisdiction before a circuit court could consider the other claims. Therefore, the circuit court dismissed all of UPW’s claims for lack of subject matter jurisdiction.

The ICA agreed with the circuit court that UPW’s claims were essentially “prohibited practices.” However, the ICA concluded that the circuit court had concurrent original jurisdiction with the HLRB over UPW’s “statutory claims.” The ICA held that the doctrine of primary jurisdiction applied to UPW’s claims and therefore, the circuit court should have stayed the case pending the outcome of the HLRB proceedings.

In its Application, UPW asks whether the ICA erred by ordering the circuit court to stay this case under the doctrine of primary jurisdiction even though the claims are within the original jurisdiction of the circuit courts and do not present issues committed to the specialized administrative expertise of the HLRB.