No. SCWC-18-0000216, Thursday, October 31, 2024, 10:30 a.m.

STATE OF HAWAI‘I, DEPARTMENT OF PUBLIC SAFETY, Respondent/Employer-Appellant-Appellee, vs. RUTH FORBES (MAB Case No. 354), Petitioner/Appellee-Appellant, and MERIT APPEALS BOARD, SEAN SANADA, VALERIE B. PACHECO, and NORA NOMURA, Respondents/Agency-Appellees-Appellees. 

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

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

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorney for Petitioner/Appellee-Appellant RUTH FORBES: 
     Ted H.S. Hong

Attorneys for Respondent/Employer-Appellant-Appellee STATE OF HAWAI‘I, DEPARTMENT OF PUBLIC SAFETY:
     Kaliko‘onalani D. Fernandes, Solicitor General, and Sianha M. Gualano, Deputy Solicitor General 

Attorney for Respondent/Agency-Appellees-Appellees MERIT APPEALS BOARD, SEAN SANADA, VALERIE B. PACHECO, and NORA NOMURA:
     Ernest Nomura and Sarah T. Casken, Deputies Corporation Counsel

NOTE: Order accepting Application for Writ of Certiorari, filed 07/10/24. 

NOTE: Order granting motion to continue to later date filed 08/13/24.

NOTE: Amended Notice of Setting for Oral Argument, now rescheduled to 10/31/24 at 10:30 AM, filed 08/22/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, 

Brief Description:

This appeal arises out of the discharge of Petitioner-Appellee-Appellant Ruth Forbes (Forbes) by her employer Respondent-Employer-Appellee State of Hawai‘i, Department of Public Safety (DPS) based on numerous charges of misconduct, including sexually harassing another DPS employee through unwanted physical contact (Charge No. 2).  Forbes is an excluded civil service employee subject to Hawai‘i Revised Statutes (HRS) Chapter 76.

Forbes appealed her discharge to the Merit Appeals Board (MAB), which found that twenty-one charges against Forbes were substantiated, including Charge No. 2.  The MAB concluded, however, that discharging Forbes was not “just”, would not “promote the efficiency of government service” under HRS § 76-46 (2012), and was not justified based on the principle of progressive discipline. The MAB ordered, among other things, that Forbes be reinstated to her position after serving a sixty-day suspension.

DPS appealed the MAB’s decision to the Circuit Court of the First Circuit (Circuit Court).  The Circuit Court held that, because Charge No. 2 was sustained by the MAB, Forbes should have been discharged pursuant to applicable DPS policies that the MAB was required to apply under HRS § 76-47(c) (2012).  That statute provides that MAB rules “shall recognize that the merit appeals board shall sit as an appellate body and that matters of policy, methodology, and administration are left for determination by the director.”  The Circuit Court thus held the MAB had exceeded its authority by not following the applicable policies.

Forbes appealed to the Intermediate Court of Appeals (ICA) arguing the Circuit Court erred by, among other things, determining: (a) that the MAB acted in excess of its statutory authority, and (b) that DPS policies supersede state law regarding discharge.  The ICA affirmed the Circuit Court’s judgment.

This court granted Forbes’s application for writ of certiorari, which raises the following questions: (1) did the ICA commit grave error by allowing the Circuit Courts to freely interfere with the MAB’s exclusive and original jurisdiction; and (2) did the ICA commit grave error by allowing employers to define “just cause”?