Kupau v. U.S. Dept. of Labor
| Citation | 597 F.Supp.2d 1113 |
| Decision Date | 05 February 2009 |
| Docket Number | No. 08-00296 HG LEK.,08-00296 HG LEK. |
| Parties | Oliver H. KUPAU, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent. Laborers International Union of North America, and Laborers' Union Local 368, Intervenors. |
| Court | U.S. District Court — District of Hawaii |
Reginald P. Minn, Honolulu, HI, for Petitioner.
Florence T. Nakakuni, Office of the United States Attorney, Honolulu, HI, for Respondent.
Ashley K. Ikeda, Lori K. Aquino, Weinberg Roger & Rosenfeld, Honolulu, HI, Sandra Rae Benson, Weinberg Roger & Rosenfeld, Alameda, CA, for Intervenors.
Petitioner Oliver H. Kupau, pursuant to 29 U.S.C. § 504(a), has applied for exemption from disqualification from employment by a labor union. Kupau's current disqualification from employment is based on his prior conviction for Laundering of Monetary Instruments.
Kupau moves for partial summary judgment declaring, as a matter of law, his conviction for money laundering presents no bar to his employment by Local 368 as the business manager.
For the reasons set forth below, Petitioner's Motion is DENIED.
On June 23, 2008, Petitioner Oliver H. Kupau filed an Application For Exemption From Disqualification pursuant to 29 U.S.C. § 504(a). (Doc. 1.)
On July 15, 2008, United States District Judge David Alan Ezra issued an Order Granting Laborers' Union Local 368 and Laborers International Union Of North America's ("LIUNA") Motion For Leave To Intervene. (Doc. 26.)
On July 25, 2008, United States District Judge David Alan Ezra issued an Order Denying Petitioner's Motion To Set Hearing Without Prejudice; Denying Petitioner's Ex Parte Motion TO Shorten Time For Hearing As Moot; And Construing Application As A Complaint And Setting Deadline For Responsive Pleading. (Doc. 37.)
On September 16, 2008, Petitioner Kupau filed the Motion For Partial Summary Judgment As To Applicability Of 29 U.S.C. § 504, and a separate Concise Statement Of Facts. (Docs. 51 and 52.)
On September 19, 2008, Respondent United States Department Of Labor filed an Answer. (Doc. 54.)
On October 9, 2008 Respondent the United States Department of Labor filed the Government's Opposition To Petitioner's Motion For Partial Summary Judgment As To Applicability Of 29 U.S.C. § 504, and a separate Response To Petitioner's Concise Statement Of Facts. (Docs. 56 and 55.)
On October 20, 2008, Petitioner Kupau filed a Reply. (Doc. 58.)
On October 27, 2008, Petitioner Kupau's Motion For Partial Summary Judgment As To Applicability Of 29 U.S.C. § 504, came on for hearing and the Court took the Motion under advisement.
On October 30, 2008, the Court issued a Minute Order DENYING Petitioner Kupau's Motion For Partial Summary Judgment As To Applicability Of 29 U.S.C. § 504. (Doc. 60.) The Order herein sets forth the basis for the October 30, 2008 ruling.
The material facts in the matter are not in dispute. Since the mid 1980s, Oliver H. Kupau ("Kupau") organized, ran, and profited from illegal cockfight gambling derbies. In 1995, Undercover Honolulu Police Department officers observed Kupau running chicken fight derbies on four separate occasions. Kupau was seen passing out fight cards, announcing odds, displaying trophies, collecting entrance fees, calling entry numbers and instructing participants in the set up of the fight pits. (Government's Opposition To Petitioner's Motion For Partial Summary Judgment ("Gov. Opp."), Exh. 4 at 17-18, Sentencing Hearing transcript in Cr. No. 02-00223, dated 11/15/2002, Doc. 56-5.) Kupau was convicted on November 20, 1998 of Promoting Gambling in the First Degree in the Circuit Court of the First Circuit, State of Hawaii, State of Hawaii v. Oliver Kupau III, et al., Cr. No. 1PC98-0-000519, fined $2000 and placed on five years probation.
On March 31, 1998, Kupau bribed a Honolulu Police Department officer to provide police protection for his illegal cockfight business so that the gambling could continue without any fear of arrest. Kupau personally paid the police officer $5100 in funds taken from his illegal cockfight gambling profits in the belief that the police officer was corrupt and would shield Kupau from prosecution in return. (Kupau's Separate Concise Statement of Facts ("Petitioner's SCSF") at 2, Doc. 52; Gov. Opp., Exh. 2 at 5, Memo. of Plea Agreement in Cr. No. 02-00223, dated 5/31/2002, Doc. 56-3.)
Based on his bribery of the police officer, Kupau was convicted on November 15, 2002, for Laundering of Monetary Instruments in violation of 18 U.S.C. § 1956(a)(1)(A)(i) in Criminal No. 02-00223. (Application For Exemption From Disqualification ( ) at Exh. A, Judgment in USA v. Oliver Kupau, Cr. No. 02-00223, Doc. 1.) Kupau was sentenced to four months of imprisonment, four months of home detention, and three years of supervised release. In sentencing Kupau to a term in prison, the Court noted that Kupau's crime was "about the corruption of law enforcement officers and the effect that has in our community." (Gov. Opp., Exh. 4 at 18-19, Sentencing Hearing transcript in Cr. No. 02-00223, dated 11/15/2002, Doc. 56-5.) Kupau was also sentenced to pay $3100 in fines and assessments, and to forfeit $5100. Kupau was released from prison on May 2, 2003, and after serving 29 months of his three year term of supervised release, was discharged early in November, 2005. (App. For Exemption at 3, ¶ 6, Doc. 1.)
Kupau was employed by Laborers Local 368 ("Local 368") during the time he ran the chicken fights, serving as a business agent, a member of the executive board, and a trustee for two union pension plans from January 2, 1989 through June 17, 2008. (Gov. Opp., Exh. 3 at 4, Arraignment and Plea Hearing transcript in Cr. No. 02-00223, dated 5/31/2002, Doc. 56-4; App. For Exemption at 2, ¶ 1, Doc. 1.) In January 2007, the national union, LIUNA, imposed a trusteeship on Local 368 for malfeasance, including financial mismanagement. As part of the process of concluding the trusteeship, LIUNA held an election for the position of business manager, the union's highest office. Kupau was nominated for the position on March 22, 2008, and took part in the May, 2008 election.
Title 29 U.S.C. § 504 disqualifies a person convicted of certain serious crimes, including bribery, from employment by a labor union. On March 26, 2008, another candidate for business manager, William Naone, Jr., sent a written election protest to LIUNA's special elections officer. Candidate Naone contended that Kupau was disqualified as a candidate because of his prior criminal convictions. On June 9, 2008, the U.S. Department of Labor, Employment Standards Administration, issued a determination through its District Director, R. Bruce Edgington, that Kupau was barred from holding any union office or employment pursuant to § 504(a) by virtue of his conviction for money laundering. (App. For Exemption, Exh. I, Letter dated 6/9/2008, Doc. 1.) The Department of Labor issued the determination after consultation with the U.S. Department of Justice. (App. For Exemption at 7, Doc. 1.)
LIUNA, the national union, terminated Kupau's employment as business agent with Local 368 on June 17, 2008 after receiving a letter from the Department of Labor advising the union that Kupau's continued employment would be considered a violation of the Labor-Management Reporting and Disclosure Act. (App. For Exemption, Exh. J, 6/16/2008 Letter from R. Bruce Edgington to Michael Bearse, Doc. 1.)
In his Motion for Partial Summary Judgment, Kupau asserts that he is entitled to judgment as a matter of law because money laundering is not one of the enumerated disqualifying offenses pursuant to 29 U.S.C. § 504. Kupau contends that because he was convicted of money laundering, and was not convicted of the Hawaii state law offense of bribery pursuant to HRS § 710-1040(1)(a), he is not precluded by § 504 from holding union office.
Kupau also argues that application of § 504 to his circumstances violates his right to due process pursuant to the Fifth Amendment of the United States Constitution, and renders § 504 void for vagueness.
Local 368 and LIUNA have intervened in the action, supporting Kupau in a bid to retain Kupau as the leader of Local 368.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). There must be sufficient evidence that a reasonable jury could return a verdict for the nonmoving party. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.1996).
The moving party has the initial burden of "identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party, however, has no burden to negate or disprove matters on which the opponent will have the burden of proof at trial. The moving party need not produce any evidence at all on matters for which it does not have the burden of proof. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The moving party must show, however, that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. That burden is met simply by pointing out to the district court that there is an absence of evidence to support the nonmovant's case. Id.
If the moving party meets its burden, then the opposing party may...
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