Cammack v. Waihee

• Citation: 932 F.2d 765
• Decision Date: 09 August 1991
• Docket Number: No. 87-15073,87-15073
• Parties: Nell A. CAMMACK; Genie Lucas; Douglas Paul Root; Carolyn L. Stapleton; Michele Wallace, Plaintiffs-Appellants, v. John W. WAIHEE, in his capacity as Governor of the State of Hawaii; Alfred Lardizabal, in his capacity as Director of Personnel Services of the State of Hawaii; Frank F. Fasi, in his capacity as Mayor of the City & County of Honolulu; Jeremy Harris, in his capacity as Managing Director of the City & County of Honolulu; Loretta K. Fukuda, in her capacity as the Director of Civil Service of the City & County of Honolulu; United Public Workers, Local 646, AFSCME; Hawaii State Teachers Association; University of Hawaii Professional Assembly; Hawaii Fire Fighters Association, Local 1463, IAFF; State of Hawaii Organization of Police Officers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 765

932 F.2d 765

59 USLW 2689

Nell A. CAMMACK; Genie Lucas; Douglas Paul Root; Carolyn L. Stapleton; Michele Wallace, Plaintiffs-Appellants, v. John W. WAIHEE, in his capacity as Governor of the State of Hawaii; Alfred Lardizabal, in his capacity as Director of Personnel Services of the State of Hawaii; Frank F. Fasi in his capacity as Mayor of the City & County of Honolulu Jeremy Harris, in his capacity as Managing Director of the City & County of Honolulu; Loretta K. Fukuda, in her capacity as the Director of Civil Service of the City &amp County of Honolulu; United Public Workers, Local 646 AFSCME; Hawaii State Teachers Association; University of Hawaii Professional Assembly; Hawaii Fire Fighters Association, Local 1463, IAFF; State of Hawaii Organization of Police Officers, Defendants-Appellees.

No. 87-15073.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 14, 1988.

Decided April 30, 1991.

As Amended Aug. 9, 1991.

Kirk Cashmere and Karen A. Essene, American Civil Liberties Union, Honolulu, Hawaii, for plaintiffs-appellants.

Steven S. Michaels, Deputy Atty. Gen., Honolulu, Hawaii, for defendant-appellee, State of Hawaii.

Danny J. Vasconcellos, Honolulu, Hawaii, for defendant-appellee United Public Workers, Local 646, AFSCME and Hawaii Government Employees' Ass'n, Local 152, AFSCME.

Vernon Yu and T. Anthony Gill, Gill, Park, Park & Kim, Honolulu, Hawaii, for defendant-appellee Hawaii State Teachers Ass'n and University of Hawaii Professional Assembly.

Appeal from the United States District Court for the District of Hawaii.

Before D.W. NELSON, O'SCANNLAIN and TROTT, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We are asked to decide the constitutionality of a Hawaii statute declaring Good Friday a state holiday. Our task is not as simple as it might appear.

I

In 1941, the Territory of Hawaii enacted a bill declaring that Good Friday, the Friday preceding Easter Sunday, shall be "set apart and established as [a] territorial holiday[ ]." Act effective Apr. 30, 1941, No. A-1, Sec. 1, 1941 Haw.Sess.Laws 1. Upon statehood, the legislation was ratified and now appears as part of Hawaii Revised Statutes section 8-1, which designates Hawaii state holidays. ¹ Good Friday has thus been a public holiday in Hawaii for fifty years. Good Friday is also a public holiday in twelve other states: Delaware, Florida, Georgia, Indiana, Louisiana, Maryland,

New Jersey, New Mexico, North Carolina, North Dakota, Tennessee, and Wisconsin. ²

Hawaii's section 8-1 appropriates no funds to carry out its purposes. By providing for state holidays, however, the statute has at least the fiscal impact that many state and local government offices are closed and many state and local government employees need not report to work. Furthermore, in 1970, the Hawaii Legislature enacted a public collective bargaining law which mandated that the terms and conditions of public employment be determined through a collective bargaining process. The statute recognized that "joint decisionmaking [between public employees and their employers] is the modern way of administering government." Id. Sec. 89-1. The number and dates of paid leave days are among the mandatory subjects of collective bargaining. All collective bargaining agreements currently in effect between public employees and their employers provide for numerous paid leave days, either expressly or through incorporation of section 8-1. Good Friday is included as one such paid leave day. These collective bargaining agreements cover approximately sixty-five percent of Hawaii's public employees.

II

Nell A. Cammack, Genie Lucas, Douglas Paul Root, Carolyn L. Stapleton, and Michele Wallace, Hawaii taxpayers and residents, filed suit under 42 U.S.C. Sec. 1983 in federal district court against the Governor of the State of Hawaii, the Mayor of the City and County of Honolulu, other officials, and public employee organizations (collectively called "government"), seeking declaratory relief and attorney fees. ³ They allege that the Hawaii statute setting apart Good Friday as a state holiday violates both the establishment clause of the first amendment of the United States Constitution and article I, section 4 of the Hawaii State Constitution. ⁴ Appellants also seek a declaration that the state and city collective bargaining agreements are unconstitutional to the extent that they provide for paid leave on Good Friday.

The district court granted summary judgment in favor of the government, determining that the appellants had standing to bring the action but upholding section 8-1 and the collective bargaining agreements as constitutional. See Cammack v. Waihee, 673 F.Supp. 1524 (D.Haw.1987). This appeal followed.

III

The government contends that this court lacks jurisdiction because appellants' notice of appeal is defective and because appellants do not have standing. We examine each argument in turn. ⁵

A

Appellants' notice of appeal reads, in pertinent part: "Notice is hereby given that Plaintiffs above-named hereby appeal ... the final judgment...." Notice of Appeal, Cammack v. Waihee, Civil No. 87-0260 (D.Haw. Dec. 4, 1987). The compound adjective "above-named" apparently refers to the notice's caption, which states: "Nell A. Cammack, et al., Plaintiffs, vs. John Waihee, et al., Defendants." Id.

Federal Rule of Appellate Procedure 3(c) provides that a notice of appeal "shall specify the party or parties taking the appeal." In Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), the Supreme Court held that courts "may not waive the jurisdictional requirements of Rules 3 and 4, even for 'good cause shown.' " Id. at 317, 108 S.Ct. at 2409. In that case, Torres, one of sixteen plaintiffs, had inadvertently been omitted from the list of appellants in the notice of appeal. Id. at 313, 108 S.Ct. at 2407; see id. at 323, 108 S.Ct. at 2412 (Brennan, J., dissenting) (noting that the other fifteen plaintiffs were listed by name as appellants). The Court concluded that Torres had not satisfied the jurisdictional requirements for maintaining an appeal, because "he was never named or otherwise designated, however inartfully, in the notice of appeal." Id. at 317, 108 S.Ct. at 2409. The use of the term "et al." in the notice of appeal was insufficient to indicate Torres' intent to appeal, because such a vague designation would not put the appellee or court on notice that Torres was indeed an appellant. See id. at 317-18, 108 S.Ct. at 2408-10.

In a recent case tracking more closely the facts of the controversy before us, this court ruled that a bare reference to "defendants" in the body of the notice, coupled with use of "et al." in the caption, constituted sufficient notice that all defendants sought appeal of the district court's judgment. ⁶ See National Center for Immigrants' Rights, Inc. v. INS, 892 F.2d 814 (9th Cir.1989) (per curiam). Where no names were listed in the body of the notice, we held, the intention to include all of the group of "defendants" in the appeal was clear. See id. at 816-17. If only some of the defendants had intended to appeal, the body of the notice would likely have indicated that "certain defendants" were appealing, or would have listed the specific appellants. Id. at 817; see also Ford v. Nicks, 866 F.2d 865, 869-70 (6th Cir.1989) (use of "et al." in caption and indication that "the defendants" were appealing in the body of the notice sufficient to give notice that all defendants were appealing), overruled, Minority Employees v. Tennessee Dep't of Employment Security, 901 F.2d 1327 (6th Cir.1990) (en banc).

As in National Center for Immigrants' Rights, Inc., the notice of appeal in this case is sufficiently clear to alert the court and defendants that all plaintiffs are seeking to appeal. There is no Rule 3(c) jurisdictional bar to this appeal, and we decline the government's invitation to dismiss the appeal. ⁷

B

A more difficult question is whether the appellants have standing to maintain this action in federal court. The original complaint alleges each plaintiff to be a citizen of the State of Hawaii, a resident of the City and County of Honolulu, and a taxpayer to each of these entities. Complaint 2-3, Cammack v. Waihee, Civil No. 87-0260 (D.Haw. April 6, 1987). The complaint's allegations include the assertion that $3.4 million in state tax revenues and $850,000 in city tax revenues are expended on the holiday. See id. at 7.

The district court held that the plaintiffs had state taxpayer standing to challenge the Hawaii statute in federal court. See Cammack, 673 F.Supp. at 1527-28. The government argues that the district court erred. The district court did not reach the question of municipal taxpayer standing, but the issue is squarely presented on this record. We consider whether the plaintiffs below (and appellants here) have either state or municipal taxpayer standing to pursue this action in federal court.

The bedrock requirement for standing is that the challenger suffer "injury." We first consider whether appellants, as state and municipal taxpayers, have properly alleged an injury sufficient to endow them with taxpayer standing to challenge the Good Friday public holiday. This requires an examination of the injury requirements which pertain to each relevant form of taxpayer standing--state and municipal.

The seminal state taxpayer standing case is Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). In that case, the Supreme Court explained that a state taxpayer has standing to challenge a state statute when the taxpayer is able to show that he " 'has sustained or is immediately in danger of sustaining some direct injury as the result of [the challenged statute's] enforcement.' " Id. at 434, 72 S.Ct. at 397 (quoting Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923) (also known as Frothingham v. Mellon )). The direct injury...