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Oral Argument Before the Hawaii Supreme Court

No. SCAP-15-0000106, Thursday, April 7, 2016, 10 a.m.

NARCIS D. SALERA; GLENN E. COMPANION; UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO; JOHN DOES 1-10; and JANE DOES 1-10,

Respondents/Plaintiffs-Appellees/Cross-Appellants, vs. KIRK W. CALDWELL, Mayor, City and County of Honolulu; CAROLEE C. KUBO, Director, Department

of Human Resources, City and County of Honolulu; LORI M. K. KAHIKINA, Director, Department of Environmental Services, City and County of Honolulu,

and CITY AND COUNTY OF HONOLULU, Petitioners/Defendants-Appellants/Cross-Appellees, and JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE

PARTNERSHIPS 1-10; ROE NON-PROFIT ORGANIZATIONS 1-10; and ROE GOVERNMENTAL ENTITIES 1-10 (2014-013), Defendants.
 
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

Attorney for Petitioners Caldwell, et al.:
    Ernest H. Nomura, Deputy Corporation Counsel

Attorneys for Respondents Salera, et al.:
    Herbert R. Takahashi and Rebecca L. Covert

NOTE: Order granting Application for Transfer, filed 08/04/15.

NOTE: Certificate of Recusal, by Associate Justice Sabrina S. McKenna, filed 02/26/16.

NOTE: Order assigning Circuit Court Judge Colette Y. Garibaldi, in place of McKenna, J., recused, filed 03/03/16.

COURT: MER, CJ; PAN, RWP, and MDW, JJ., and Circuit Court Judge Garibaldi, in place of McKenna, J., recused.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

        In 1998, the United Public Workers, AFSCME, Local 646, AFL-CIO (collectively, UPW), which represents employees of front-end loader work

crews, and the City and County of Honolulu entered into a Memorandum of Agreement whereby the City and County of Honolulu agreed to, inter alia,

restore and expand refuse collection and disposal services to businesses, condominiums, and churches.  For approximately the last ten years, six

front-end loader crews have provided these services twice a week for 181 multi-unit residential and non-profit organization properties.

        In July 2014, the Director of the Department of Environmental Services, the City and County of Honolulu, decided to terminate frontloader

collection services to these 181 properties effective January 31, 2015.  The Department of Environmental Services sent notices to the affected

properties, which included a list of contact information for fourteen private haulers that could potentially provide replacement collection

services.  Subsequently, 116 of the 181 affected properties entered into contracts with private licensed collectors.

        On December 31, 2014, Narcis Salera, Glenn Companion, and the UPW (collectively, the Union) sued the City and County of Honolulu and certain

City officials and agencies (collectively, the City) in the Circuit Court of the First Circuit (circuit court).  The Complaint stated four claims,

including (1) a violation of constitutional merit principles under Article XVI, Section 1 of the Hawai`i Constitution (count 1); (2) a violation of

civil service laws pursuant to Section 46-33 of the Hawaiʻi Revised Statutes (count 2); (3) a violation of the right to collective bargaining under

Article XIII, Section 2 of the Hawaiʻi Constitution (count 3); and (4) a violation of public policy and ultra vires contrary to the judgments

relating to the Memorandum of Agreement (count 4). 

        On January 13, 2015, the Union filed a motion for a temporary restraining order and preliminary injunction seeking to enjoin the City from

“unilaterally implementing the privatization” of the frontloader refuse collection services at issue.  The circuit court granted the Union’s

injunction motion, finding that the cancellation of frontloader refuse collection services constituted impermissible privatization and rejecting any

argument that this case involved a non-justiciable political question. 

        The Union also filed a motion for partial summary judgment on the claims pertaining to the alleged violations of merit principles (counts 1

and 2), which the circuit court granted (Partial Summary Judgment Order).  The circuit court concluded that there was no genuine issue of material

fact as to a violation of constitutional merit principles and civil service laws and thus permanently enjoined the City from privatizing frontloader

refuse collection and disposal services to the 181 affected properties.  The circuit court also certified the Partial Summary Judgment Order

(Certification Order) and stayed the proceedings as to counts 3 and 4 pending the disposition of an appeal (Stay Order).  The circuit court also

certified the Union’s request to appeal the Certification Order and Stay Order.

        The City filed an appeal from the Partial Summary Judgment Order, contending that the circuit court erred in (1) concluding that the

termination of frontloader collection services to the 181 affected properties constituted privatization; (2) adjudicating political questions

related to legislative budget decision-making and the executive branch’s decision to eliminate government services; and (3) enjoining and entering

judgment against the City when all interested and necessary parties, such as the affected property owners and private haulers who had already

entered into contracts, were not joined in the lawsuit where joinder was feasible. 

        The Union filed a cross-appeal from the Certification Order and Stay Order, contending that the circuit court erred in (1) entering the

Certification Order, rendering the appellate court without jurisdiction over the City’s appeal; and (2) staying proceedings as to counts 3 and 4

because the interlocutory appeal does not resolve all matters in the case.

        This case was transferred to this court from the Intermediate Court of Appeals on August 4, 2015.