Alaka'i Na Keiki Inc. v. Hamamoto, 29742

• Court: Court of Appeals of Hawai'i
• Parties: ALAKA'I NA KEIKI, INC., Plaintiff-Appellant, v. PATRICIA HAMAMOTO, in her official capacity as Superintendent of Education, Defendant-Appellee and DOES 1-10, Defendants
• Docket Number: NO. 29742,29742
• Decision Date: 24 May 2011

ALAKA'I NA KEIKI, INC., Plaintiff-Appellant,
v.
PATRICIA HAMAMOTO, in her official capacity as Superintendent of Education, Defendant-Appellee
and DOES 1-10, Defendants

NO. 29742

INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I

MAY 24, 2011

FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 05-1-1658)
FOLEY, PRESIDING J., FUJISE, J., AND CIRCUIT JUDGE BORDER IN PLACE OF NAKAMURA, C.J., AND LEONARD, J., BOTH RECUSED¹
OPINION OF THE COURT BY FOLEY, J.

Plaintiff-Appellant Alaka'i Na Keiki, Inc. (ANK) appeals from the "Judgment in Favor of Defendant Patricia

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Hamamoto in Her Official Capacity as Superintendent of Education and Against Plaintiff Alaka'i Na Keiki, Inc., as to All Claims Asserted in the Second Amended Complaint" (Judgment) filed on March 4, 2009 in the Circuit Court of the First Circuit² (circuit court). The circuit court entered the Judgment pursuant to the "Order Granting Defendant's Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment Filed on May 9, 2008," filed October 29, 2008, and the "Order Denying Plaintiff Alaka'i Na Keiki, Inc.'s Motion for Summary Judgment Filed on May 9, 2008," filed October 27, 2008.

I.

In October 2004, the State of Hawai'i Department of Education (DOE) issued a Request for Proposals (RFP) to provide intensive instructional support services to students with educational disabilities. The RFP was "issued under the provisions of the Hawaii Revised Statutes [(HRS)], Chapter 103F [(Chapter 103F)] and its administrative rules." DOE reserved the right to reject proposals for a variety of reasons described in the RFP. An applicant could protest the awarding of a contract, but only for the agency's failure to follow the procedures and rules established by Chapter 103F or for failure to follow "any procedure, requirement, or evaluation criterion in [the RFP]." The proposals were evaluated according to five categories; however, only four of the categories earned points. To be eligible for the contract, applicants had to receive a score of 70 points or better out of a possible score of 100 points.

ANK submitted a proposal in January 2005. DOE notified ANK on March 31, 2005 that its proposal failed to meet the minimum score of 70 to be considered in the pool of providers. ANK protested DOE's decision. On April 29, 2005, DOE informed ANK that all proposals were being re-scored. Upon re-scoring, ANK still failed to meet the minimum score. ANK filed an amended

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notice of protest on May 18, 2005. On May 31, 2005, ANK met with DOE to informally discuss resolution of its protest and discovery procedures. During June and July of 2005, several requests for information and discovery were made by ANK and denied by DOE. On July 18, 2005, ANK again filed a protest, with exhibits, documenting alleged errors in the evaluation. On July 27, 2005, DOE Acting Educational Specialist Marilyn Jakeway sent a response, to which ANK replied on August 2, 2005. DOE Procurement and Contracts Specialist Christian Butt denied ANK's protest on August 9, 2005.

ANK then submitted a request for reconsideration on August 16, 2005. On August 25, 2005, DOE Assistant Superintendent Rae Loui rejected the request, "find[ing] no error on the part of the purchasing agency." Thus, stated Loui, "[t]he findings of the purchasing agency in its decision on the protest are affirmed and upheld. The decision of the head of the purchasing agency is upheld."

ANK filed a complaint in the circuit court on September 16, 2005 contesting DOE's decision. ANK filed a First Amended Complaint on September 20, 2005 and a Second Amended Complaint on November 13, 2006. The circuit court entered judgment in favor of DOE and against ANK, and ANK timely appealed.

On appeal, ANK contends the circuit court erred in its

(1) March 20, 2006 "Order Granting in Part and Denying in Part Defendant-Appellee's Motion to Dismiss the First Amended Complaint Filed on October 6, 2005" (March 20, 2006 Order) when the court found that judicial review under HRS Chapter 91 was precluded by HRS § 103F-504 (Supp. 2010) because courts have express and inherent power to review agency action under the Hawai'i Constitution and HRS § 603-21.9 (1993); and

(2) October 27, 2008 "Order Denying Plaintiff Alaka'i Na Keiki's Motion for Summary Judgment Filed May 9, 2008" (Order

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Denying ANK's MSJ) and (3) October 29, 2008 "Order Granting Defendant's Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment Filed on May 9, 2008" (Order Granting Hamamoto's MSJ) because HRS Chapter 103F was unconstitutional, the court had authority to review DOE's decision and underlying actions, DOE was liable in tort due to violations of the statute and its administrative rules, there was a material issue of fact regarding negligent scoring as evidenced by deposition testimony, and the action clearly was not moot.³

ANK asks that we (1) vacate the circuit court's March 20, 2006 Order, Order Denying ANK's MSJ, and Order Granting Hamamoto's MSJ and direct the court to enter partial summary judgment in favor of ANK; (2) invalidate HRS Chapter 103F as unconstitutional or, in the alternative, (3) declare that DOE acted unlawfully; (4) enjoin DOE and all contracting agencies from further procurement activities under HRS Chapter 103F pursuant to Count IV (Injunctive Relief) pending the development of interim rules by the court to safeguard constitutional protections and appointment of a special master to review bid protests and make recommended decisions to the circuit court regarding final disposition of protests pending legislative cure of the statute; (5) remand to the circuit court on the issues of damages, legal and equitable remedies pursuant to the tort, declaratory relief, and judicial review claims set out in Counts I, II, and III; and (6) award attorneys' fees, costs, and other relief to ANK as permitted by law.

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II. STANDARDS OF REVIEW

A. Summary Judgment

On appeal, the grant or denial of summary judgment is reviewed de novo. See State ex rel. Anzai v. City and County of Honolulu, 99 Hawai'i 508, [515], 57 P.3d 433, [440] (2002); Bitney v. Honolulu Police Dep't, 96 Hawai'i 243, 250, 30 P.3d 257, 264 (2001).

[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and inferences drawn therefrom in the light most favorable to the party opposing the motion.

Kahale v. City and County of Honolulu, 104 Hawai'i 341, 344, 90 P.3d 233, 236 (2004) (citation omitted).

Nuuanu Valley Ass'n v. City & County of Honolulu, 119 Hawai'i 90, 96, 194 P.3d 531, 537 (2008).

B. Statutory Interpretation

The interpretation of a statute is a question of law that is reviewed de novo.

When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists[.]
In construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.

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[The appellate] court may also consider the reason and spirit of the law, and the cause which induced the legislature to enact it [] to discover its true meaning. Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called upon in aid to explain what is doubtful in another.

Morgan v. Planning Dep't, County of Kaua'i, 104 Hawai'i 173, 179-80, 86 P.3d 982, 988-89 (2004) (citations and internal quotation marks omitted).

[W]here an administrative agency is charged with the responsibility of carrying out the mandate of a statute which contains words of broad and indefinite meaning, courts accord persuasive weight to administrative construction and follow the same, unless the construction is palpably erroneous.

Id. at 180, 86 P.3d at 989 (citing Ka Pa'akai O Ka 'Aina v. Land Use Comm'n, State of Hawai'i, 94 Hawai'i 31, 41, 7 P.3d 1068, 1078 (2000)). Stated differently:

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