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Oral Argument Before the Hawaii Supreme Court–SCWC-19-0000841

No. SCWC-19-0000841, Thursday, August 26, 2021, 2 p.m.

E. KALANI FLORES, Petitioner/Plaintiff-Appellant, vs. 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 Hawaiʻi Police Department; TIVOLI FAAUMU, in his Capacity as Chief of Police of Maui County, Respondents/Defendants-Appellees.

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

The oral argument was held remotely for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts.

Attorney for Petitioner Flores:

Peter S.R. Olson of Olson & Sons

Attorneys for Respondents Ballard, Ferreira, and Faaumu:

Ernest H. Nomura, Robert M. Kohn, and Nicolette Winter, Deputies Corporation Counsel of the City and County of Honolulu; Peter A. Hanano, Deputy Corporation Counsel of the County of Maui; Laureen L. Martin, D. Kaena Horowitz, and Lerisa L. Heroldt, Deputies Corporation Counsel of the County of Hawaii

Attorneys for Amicus Curiae IMLA:

Steven L. Goto of Chong, Nishimoto, Sia, Nakamura & Goya, LLLP; Alan D. Cohn of Steptoe & Johnson LLP, admitted pro hac vice

NOTE: Order accepting Application for Writ of Certiorari, filed 06/22/21.

NOTE: Order granting IMLA’s amended motion for Alan D. Cohn to appear at oral argument as amicus curiae, filed 08/03/21.

COURT: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.

Brief Description:

In July 2019, Petitioner/Plaintiff-Appellant E. Kalani Flores (Flores) and other protesters gathered on Mauna Kea on the Island of Hawaiʻi to protest against the construction of the Thirty Meter Telescope (TMT). The chief of Hawaiʻi County Police Department (HCPD), Respondent/Defendant-Appellee Paul Ferreira (Chief Ferreira) requested assistance from Respondents/ 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 respond to the protesters. Chief Ferreira entered into written agreements with Chief Ballard and Chief Faaumu authorizing the temporary assignment of officers to HCPD and officers from HPD and MPD traveled to assist HCPD on Mauna Kea. The agreements stated that they were authorized by two different statutes: (1) Hawaiʻi Revised Statutes (HRS) § 78-27, which provides for the temporary assignment of government employees from one agency to another; and (2) HRS § 52D-5, which permits police officers to exercise police authority outside their home county only in the pursuit of an investigation commenced within their home jurisdiction and with the permission of the receiving county’s chief of police.

Flores filed a complaint in the Circuit Court of the Third Circuit (circuit court) naming as defendants Chief Ballard, Chief Faaumu, and Chief Ferreira (collectively, “the Chiefs”) and seeking declaratory and injunctive relief. In his complaint, Flores challenged the presence and legal authority of HPD and MPD officers within the County of Hawaiʻi, arguing that it was in violation of HRS § 52D-5 because the visiting officers were not on Mauna Kea in the pursuit of an investigation commenced within their home jurisdiction. The Chiefs moved to dismiss Flores’s complaint on the basis that HRS § 52D-5 does not create a private right of action for an individual to challenge an alleged violation of HRS § 52D-5. The circuit court granted the Chiefs’ motion to dismiss.

Flores appealed to the ICA and the ICA affirmed the circuit court’s decision on different grounds. The ICA concluded that HRS § 52D-5 was not implicated by the assistance of HPD and MPD officers at Chief Ferreira’s request. The ICA held that the temporary assignment of HPD and MPD officers was authorized by HRS § 78-27 and that other statutes and the Hawaiʻi County Charter authorized Chief Ferreira, as Chief of HCPD, to delegate his police powers to the visiting officers.

On certiorari, Flores asks whether the ICA gravely erred by (1) concluding that HRS § 52D-5 did not apply, even though the Chiefs initially claimed that they were acting pursuant to HRS § 52D-5; (2) concluding that the HPD and MPD officers were acting under Chief Ferreira’s authority, rather than the authority of their respective departments; and (3) failing to decide whether HRS § 52D-5 creates a private right of action.