Flores v. Ballard
| Decision Date | 27 January 2021 |
| Docket Number | NO. CAAP-19-0000841,CAAP-19-0000841 |
| Citation | 482 P.3d 544 |
| Parties | E. Kalani FLORES, Plaintiff-Appellant, v. 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 Hawai‘i Police Department; Tivoli Faaumu in his capacity as Chief of Police of Maui County, Defendants-Appellees, and John Does 1-100, Jane Does 1-100, Doe Corporations 1-100, Doe Partnerships 1-100, Doe Entities 1-100, and Richard Roes 1-100, Mary Roes 1-100, Roe Corporations 1-100, Roe Partnerships 1-100, Roe Entities 1-100, Defendants |
| Court | Hawaii Court of Appeals |
On the briefs:
Peter S.R. Olson, for Plaintiff-Appellant.
Ernest H. Nomura, Robert M. Kohn, Nicolette Winter, Deputies Corporation Counsel, for Defendant-Appellee Susan Ballard.
Peter A. Hanano, Deputy Corporation Counsel, for Defendant-Appellee, Tivoli Faaumu.
Laureen L. Martin, Deputy Corporation Counsel, Wailuku, for Defendant-Appellee, Paul Ferreira.
Richard F. Nakamura, Steven L. Goto, Honolulu, Alan D. Cohn, pro hac vice, Jason E. Meade, pro hac vice, for Amicus Curiae International Municipal Lawyers Association, Inc.
With one exception, each county in Hawai‘i has its own police department.1 This case presents the issue of whether the police chief of one county can utilize police officers from another county to enforce the law in the chief's county. We hold: (1) the temporary assignment of police officers from one county to another is authorized by Hawai‘i Revised Statutes (HRS ) § 78-27 (2012) ; and (2) HRS Chapter 52D and the Hawai‘i County Charter authorize the chief of the Hawai‘i County Police Department (HCPD ) to appoint and supervise police officers from other counties temporarily assigned to Hawai‘i County.
This case arises from the controversy surrounding the construction of the Thirty Meter Telescope (TMT ) at the summit of Mauna Kea, located on Hawai‘i Island. Mauna Kea (lit., white mountain) is the highest mountain in the state, rising 13,796 feet above sea level. Mary Kawena Pukui, Samuel H. Elbert & Esther T. Mo‘okini, Place Names of Hawai‘i 148-49 (Univ. of Haw. Press 1976). Almost all of the land above the 12,000-foot elevation comprises the Mauna Kea Science Reserve, which consists of a 10,763-acre cultural and natural preserve and a 525-acre Astronomy Precinct.
In re Conservation Dist. Use Application (CDUA) HA-3568, 143 Hawai‘i 379, 385, 431 P.3d 752, 758 (2018), as amended (Nov. 5, 2018 & Nov. 30, 2018), recon. granted in part, denied in part, 143 Hawai‘i 327, 430 P.3d 425 (Table) (2018), and recon. denied sub nom. In re Contested Case Hearing re Conservation Dist. Use Application (CDUA) HA-3568, 143 Hawai‘i 328, 430 P.3d 426 (Table) (2018) ( In re TMT CDUA ).
The Hawai‘i Board of Land and Natural Resources (BLNR ) leased the Mauna Kea Science Reserve to the University of Hawai‘i in 1968. Flores v. Bd. of Land & Nat. Res., 143 Hawai‘i 114, 117, 424 P.3d 469, 472 (2018) ( Flores I ). The lease allows the University to use the land "as a scientific complex, including ... an observatory, and as a scientific reserve being more specifically a buffer zone to prevent the intrusion of activities inimical to said scientific complex." Id. As of mid–2010, 13 astronomical facilities were located on Mauna Kea. Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 381, 363 P.3d 224, 229 (2015). According to the University, observatories are attracted to Mauna Kea "principally because of the superb viewing conditions that its high-altitude/mid-oceanic location provides[.]" Id.
In 2014 the University asked for BLNR's consent to sublease a portion of the Mauna Kea Science Reserve to TMT International Observatory LLC for construction of the TMT. Flores I, 143 Hawai‘i at 116, 424 P.3d at 471. BLNR consented to the sublease on April 9, 2015. Id. at 118, 424 P.3d at 473. BLNR's consent was challenged. The Hawai‘i Supreme Court validated the consent in Flores I.
In September 2017, BLNR issued a conservation district use permit for the TMT. In re TMT CDUA, 143 Hawai‘i at 384, 431 P.3d at 757. The permit was challenged. In November 2018, the supreme court affirmed BLNR's issuance of the permit. Id. at 409, 431 P.3d at 782. Thus, construction of the TMT — which had been delayed for years by legal challenges to the sublease and to the conservation district use permit – was allowed to proceed.
At some point before July 16, 2019, a great number of people assembled at Pu‘u Huluhulu, near the road leading to the Mauna Kea summit. They gathered to protest construction of the TMT by, among other things, blocking access to construction equipment and vehicles. The large scale of the protest strained HCPD's resources. The chief of HCPD, Defendant-Appellee Paul Ferreira (Chief Ferreira ), asked 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 support HCPD operations relating to the TMT construction project.
On Tuesday, July 16, 2019, HPD and MPD officers arrived on Hawai‘i Island to provide the requested support. The next day Plaintiff-Appellant E. Kalani Flores (Flores ) filed a "Complaint for Declaratory and Injunctive Relief" with the Circuit Court of the Third Circuit, challenging the presence and legal authority of non-Hawai‘i-County law enforcement personnel on Hawai‘i Island. Flores's complaint named Chief Ballard, Chief Faaumu, and Chief Ferreira (collectively, the Chiefs of Police ) as defendants.
Flores's complaint made the following allegations: Flores is a Native Hawai‘ian.2 He lives on Hawai‘i Island. He holds Mauna Kea — an important site for Native Hawai‘ians to conduct traditional and customary cultural practices — to be sacred.3 He has performed traditional Native Hawai‘ian ceremonies on Mauna Kea for a number of years.
On July 13, 2019, Flores and others assembled at Pu‘u Huluhulu to express reverence for Mauna Kea and opposition to construction of the TMT. Flores claims that the government prevented him and other members of the public from accessing Mauna Kea, while permitting telescope employees to travel to the summit. As described by Flores's complaint, there "was a heated day of standoffs and negotiations between authorities and opponents of the Thirty Meter Telescope." Although the day ended on "relatively peaceful terms," the news media reported on a statement issued by HPD:
HPD officers will be going to Hawai‘i Island at the request of the Hawai‘i Police Department. They will assist Hawai‘i police officers in keeping roadways clear for the movement of construction equipment and vehicles.
Flores's complaint alleged that HPD and MPD officers went to Hawai‘i Island to exercise police power in violation of HRS § 52D-5 :
Flores sought a judgment declaring that the Chiefs of Police failed to comply with HRS § 52D-5, a temporary restraining order, and preliminary and permanent injunctions prohibiting the Chiefs of Police from violating the statute.
Chief Ballard filed a motion to dismiss Flores's complaint (MTD ) under Rule 12(b)(6) of the Hawai‘i Rules of Civil Procedure (HRCP ).4 She argued: (1) there is no private right of action for alleged violation of HRS § 52D-5 ; and (2) Flores's claim was moot because HPD officers were no longer on Hawai‘i Island for any purpose relating to the TMT.
Chief Faaumu joined in Chief Ballard's MTD. He agreed with the no-private-right-of-action argument, and that Flores's claim was moot because MPD officers were no longer on Hawai‘i Island for any purpose relating to the TMT.
Chief Ferreira also filed a joinder. He agreed with the no-private-right-of-action argument, but took no position on the mootness argument because it did not apply to him as Chief of HCPD.
Flores filed a memorandum in opposition to Chief Ballard's MTD. He argued: (1) there was an implicit or implied private right of action for violation of HRS § 52D-5 ; and (2) exceptions to the mootness doctrine applied. Attached to the memorandum were declarations by Flores and by Flores's counsel, and eight exhibits.
Chief Ballard filed a reply memorandum. She objected to the declarations and exhibits submitted by Flores. She also made the new argument that HRS § 52D-5 was not triggered at all, because HRS § 78-27 authorized the actions taken by HPD.
Flores filed an ex parte motion for leave to file a supplemental declaration and three additional exhibits in opposition to Chief Ballard's MTD, copies of which were appended to the ex parte motion. The circuit court granted Flores's ex parte motion by order entered on September 19, 2019.
Chief Ballard's MTD and the other chiefs' joinders were heard on September 20, 2019.5 Flores responded to the argument about HRS § 78-27 raised in Chief Ballard's reply memorandum. After hearing argument, the circuit court ruled:
So the Court concludes...
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