Oral Arguments Schedule

Case Details

Court

This oral argument has been rescheduled to Tuesday, July 23, 2024, 9 a.m.

No. SCWC-22-0000585, Tuesday, July 2, 2024, 9 a.m.

ALPHA, INC., Petitioner and Respondent/Appellant-Appellant, vs. BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU, Respondent and Petitioner/Appellee-Appellee, and OFFICE OF ADMINSITRATIVE HEARINGS, DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS, STATE OF HAWAIʻI, Respondent/Appellee-Appellee, and BEYLIK/ENERGETIC A JV, Respondent/Appellee-Intervenor-Appellee.

This oral argument has been rescheduled to Tuesday, July 23, 2024, 10:30 a.m.

No. SCWC-23-0000185, Tuesday, July 2, 2024, 10:30 a.m.

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellant, vs. RANDALL HOFFMAN, Petitioner/Defendant-Appellee.

No. SCWC-22-0000585, Tuesday, July 23, 2024, 9 a.m.

ALPHA, INC., Petitioner and Respondent/Appellant-Appellant, vs. BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU, Respondent and Petitioner/Appellee-Appellee, and OFFICE OF ADMINSITRATIVE HEARINGS, DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS, STATE OF HAWAIʻI, Respondent/Appellee-Appellee, and BEYLIK/ENERGETIC A JV, Respondent/Appellee-Intervenor-Appellee.

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/.

Attorneys for Petitioner and Respondent/Appellant-Appellant ALPHA, INC.:

     Jeffrey M. Osterkamp and Kirk M. Neste of Cades Schutte

Attorneys for Respondent and Petitioner/Appellee-Appellee BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU:

Joseph A. Stewart, Aaron R. Mun, and Stephen G.K. Kaneshiro of Kobayashi Sugita & Goda, LLP, and Moana A. Yost and Jeff A. Lau, Deputies Corporation Counsel

Attorneys for Respondent/Appellee-Intervenor-Appellee BEYLIK/ENERGETIC A JV:

      Lyle S. Hosoda, Kourtney H. Wong, and Spencer J. Lau of Hosoda Law Group

NOTE:     Order accepting Applications for Writ of Certiorari, filed 05/30/24.

NOTE:     Amended Notice of Setting for Oral Argument due to rescheduling from 07/02/24 at 9:00 A.M. to 07/23/24 at 9:00 A.M., filed 07/01/24.

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

Brief Description:

This case is a procurement dispute between Alpha, Inc. (Alpha), a bidder, and the Board of Water Supply, City and County of Honolulu (BWS), the procuring agency.  BWS solicited bids for a contract to drill three wells.  Alpha was the low bidder, but BWS found its bid nonresponsive.  BWS awarded the contract to a different company. 

Both Alpha and BWS present questions for this court’s review.  Alpha argues that it was qualified to perform the work, so BWS erred by finding its bid nonresponsive.  BWS argues that Alpha could not appeal its disqualification of Alpha’s bid to an administrative hearings officer.  BWS contends that under Hawai‘i Revised Statutes § 103D-709(d), the hearings officer lacked jurisdiction over Alpha’s appeal.

No. SCWC-23-0000185, Tuesday, July 23, 2024, 10:30 a.m.

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellant, vs. RANDALL HOFFMAN, Petitioner/Defendant-Appellee.

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/Defendant-Appellee RANDALL HOFFMAN:

     Benjamin E. Lowenthal, Deputy Public Defender

Attorney for Respondent/Plaintiff-Appellant STATE OF HAWAI‘I:

     Tracy Murakami, Deputy Prosecuting Attorney

NOTE:     Order accepting Application for Writ of Certiorari, filed 05/29/24.

NOTE:     Amended Notice of Setting for Oral Argument due to rescheduling from 07/02/24 at 10:30 A.M. to 07/23/24 at 10:30 A.M., filed 07/01/24.

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

Brief Description:

Hawaiʻi State Department of Land and Natural Resources Division of Conservation and Resources Enforcement (“DLNR DOCARE”) Officer Warren Tavares (“Officer Tavares”) encountered Randall Hoffman (“Hoffman”) in a trailer stopped on a Kauaʻi roadside, with Hoffman in it actively dumping green waste.  Officer Tavares stated that he believed probable cause existed for Hoffman’s arrest at that time.  At no point during the ensuing encounter was Hoffman advised of his state Miranda rights. 

Officer Tavares pointed to a sign prohibiting illegal dumping and informed Hoffman that what he was doing was a crime.  Hoffman cursed back.  Officer Tavares then told Hoffman that dumping green waste there was illegal and could subject him to a citation or to arrest for criminal littering.  He added that the State and multiple agencies had recently worked together and spent over $100,000 to clean up that area, which was a high crime area with many abandoned cars and drug activity.  Hoffman again cursed.  Hoffman then said he had been turned away from the Hanapepe Refuse Station because his trailer was too big.  Officer Tavares told Hoffman he would have to take up that matter with the county and that he was without jurisdiction to address that.  Hoffman again replied with a curse.

Officer Tavares then went into Hoffman’s trailer and handcuffed him behind his back.  He then moved Hoffman off the trailer.  As Officer Tavares was retrieving his citation book from his vehicle, Hoffman moved his handcuffed arms to the front of his body, re-entered his trailer, and resumed throwing green waste onto the ground.  Officer Tavares entered Hoffman’s trailer, and the two ended up scuffling on the ground.  Hoffman wrapped his legs around Officer Tavares and squeezed, causing Officer Tavares pain.  After Officer Tavares punched Hoffman twice in the face, Hoffman stated, “Okay, I’m done.”

Hoffman was charged with assaulting a law enforcement officer, resisting arrest, and criminal littering.  Before trial, the state filed a motion to determine the voluntariness of Hoffman’s statements.  The circuit court denied the motion because although Officer Tavares testified he had probable cause to arrest Hoffman the moment he arrived at the scene, he did not Mirandize Hoffman at any point during the encounter. 

The State appealed. On appeal, both parties agreed Hoffman was in custody; at issue was whether he was interrogated.  The Intermediate Court of Appeals (“ICA”) issued a summary disposition order (“SDO”) affirming in part and vacating in part the circuit court’s order.  The ICA affirmed the inadmissibility of Hoffman’s explanation that he had been turned away at the Hanapepe Refuse Station because his trailer was too big.  The ICA vacated that part of the circuit court’s order ruling Hoffman’s other statements inadmissible.  The ICA ruled that the words or conduct Officer Tavares used in eliciting those statements were “normally attendant to arrest and custody” and not “interrogation.”  The ICA cited to Hawai‘i Revised Statutes § 803-6, titled “Arrest, how made,” which states that an arresting officer, among other things, “should give the party arrested clearly to understand for what cause the person undertakes to make the arrest.”  

Hoffman presents a single question on certiorari:  “Did the [ICA] gravely err when it ruled that an officer’s conduct and statements ‘normally attendant to arrest and custody’ could not arise to an interrogation triggering Miranda warnings?”

No. SCAP-22-0000482 (consolidated with SCAP-22-0000571 and SCAP-23-0000330), Tuesday, August 6, 2024, 9 a.m. 

BRYAN GERALD, Appellant-Appellant, vs. EMPLOYMENT SECURITY APPEALS REFEREES’ OFFICE; UNEMPLOYMENT INSURANCE DIVISION; and HEALTH GO MARKET, INC., Appellees-Appellees. (SCAP-22-000482)

ADAM GRAY, Appellant-Appellee, vs. UNEMPLOYMENT INSURANCE DIVISION, Appellee-Appellant.  (SCAP-22-0000571)

ADAM GRAY, Appellant-Appellant, vs. UNEMPLOYMENT INSURANCE DIVISION, Appellee-Appellee.  (SCAP-23-0000330)

The above-captioned consolidated cases have 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/.

Attorneys for Appellant-Appellant BRYAN GERALD (SCAP-22-0000482):

     Douglas C. Smith and Ross Uehara-Tilton of Damon Key Leong Lupchak Hastert, Pro Bono Attorneys

Attorney for Appellant-Appellee (SCAP-22-0000571) and Appellant-Appellee (SCAP-23-0000330) ADAM GRAY:  

     Daniel M. Gluck, Hawaii Appellate Pro Bono Attorney, Volunteer Legal Services Hawaii

Attorneys for Appellee-Appelle (SCAP-22-0000482), Appellee-Appellant (SCAP-22-0000571) and Appellee-Appellee (SCAP-23-0000330) DIRECTOR OF LABOR AND INDUSTRIAL RELATIONS:

     Li-Ann Yamashiro and Jack W. Relf, Deputy Attorneys General

NOTE:     Order granting Applications for Transfer and consolidating SCAP-22-0000482 and SCAP-22-0000571 under SCAP-22-0000482, filed 05/15/23.

NOTE:     Order granting Application for Transfer in SCAP-23-330 and consolidating SCAP-23-0000330, SCAP-22-0000482 and SCAP-22-0000571 under SCAP-22-0000482, filed 07/07/23.

NOTE:     Amended Notice of Setting for Oral Argument due to rescheduling from 06/27/24 at 10:00 A.M. to 08/06/24 at 9:00 A.M., filed 07/08/24.

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

Brief Description:

These consolidated appeals address whether the State of Hawaii Department of Labor and Industrial Relations (DLIR), Employment Security Appeals Referees’ Office (ESARO) properly dismissed appeals from initial determinations on unemployment insurance claims as untimely.  Bryan Gerald (Gerald) and Adam Gray (Gray) each made claims for unemployment benefits that were denied by the DLIR’s Unemployment Insurance Division (UID).  Gerald’s case involves one claim and Gray’s case involves two claims for different periods of asserted unemployment.  After their claims were denied, Gerald and Gray submitted appeals to the ESARO past the deadlines set out in Hawaii Revised Statutes (HRS) § 383-38(a) (2015).  HRS § 383-38(a) allows a party to appeal within ten days after notice of a claim determination is mailed, but also provides that for good cause the period of appeal may be extended to thirty days.  Gerald and Gray submitted their respective appeals to the ESARO more than thirty days after notices were mailed to them.  The ESARO dismissed each of the appeals.

     Gerald appealed the ESARO’s dismissal to the Circuit Court of the Fifth Circuit (Fifth Circuit Court) asserting that his untimely appeal to the ESARO was due to mental health challenges.  The Fifth Circuit Court held that it lacked jurisdiction because Gerald’s underlying appeal to the ESARO was untimely.

     Gray filed two appeals to the Circuit Court of the Second Circuit (Second Circuit Court) corresponding to his different claims, asserting that circumstances related to the COVID pandemic and difficulty contacting the unemployment office affected the timing of his appeal to the ESARO.  Two Second Circuit Court judges decided Gray’s appeals differently.  The Honorable Kelsey Kawano held that the court lacked jurisdiction because Gray’s appeal to the ESARO was untimely.  The Honorable Kirstin Hamman vacated the ESARO’s dismissal on grounds that, due to the circumstances in the case, denial of Gray’s appeal was a denial of access to justice and a violation of his due process rights.

     All three circuit court decisions were appealed to the Intermediate Court of Appeals.  This court granted transfer of each appeal and consolidated them.  Both Gerald and Gray raise multiple issues, including whether the appeal deadlines in

HRS § 383-38(a) are jurisdictional and whether the deadlines are subject to equitable tolling.

No. SCWC-18-0000941, Tuesday, August 6, 2024, 10:30 a.m.

WILLIAM FORESMAN, a single man, Respondent/Plaintiff-Counterclaim Defendant-Appellee, vs. JOHN FORESMAN, a single man, Petitioner/Defendant-Counterclaim Plaintiff-Appellant.

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 JOHN FORESMAN:
     Scot Stuart Brower

Attorney for Respondent WILLIAM FORESMAN:  
     Brandee J.K. Faria

NOTE:     Order accepting Application for Writ of Certiorari, filed 06/28/24.

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

Brief Description:

This appeal arises out of a 2016 civil lawsuit in the Circuit Court of the First Circuit (Circuit Court), by Respondent/Plaintiff-Appellee (Respondent) against his uncle, Petitioner/Defendant-Appellant (Petitioner) for civil damages alleging that Petitioner sexually abused Respondent in 1975 and 1976 when Respondent was approximately 7 to 8 years old and Petitioner was approximately 15 to 16 years old.   Respondent filed suit pursuant to Hawai‘i Revised Statutes (HRS) § 657-1.8 (2016), which established certain limitation periods for “[a] civil cause of action for the sexual abuse of a minor . . . based upon sexual acts that constituted or would have constituted a criminal offense under part V or VI of [HRS] chapter 707.”

     At trial, the Circuit Court instructed the jury on the elements of four different criminal offenses based on how those offenses appeared in the HRS at the time the lawsuit was brought.  Petitioner objected to the instructions, asserting they should be based on the law when the alleged offenses occurred.  The jury awarded Respondent general damages in the amount of $50,000 and punitive damages in the amount of $200,000, and the Circuit Court entered judgment accordingly.

     Petitioner appealed to the Intermediate Court of Appeals (ICA) asserting three central points of error: (1) the Circuit Court erred by improperly interpreting and applying HRS § 657-1.8 and instructing the jury on criminal laws in existence at the time the lawsuit was brought; (2) HRS § 657-1.8 is unconstitutional under the ex post facto clause of the United States Constitution, and under the Hawai‘i Constitution; and (3) HRS § 657-1.8 is unconstitutional under the due process clauses of the United States and the Hawai‘i Constitutions.  The ICA affirmed the Circuit Court’s judgment.

     This court granted Petitioner’s application for writ of certiorari, which raises the same issues raised at the ICA.

No. SCWC-19-0000107, Thursday, August 22, 2024, 9 a.m., MĀLAMA KAKANILUA vs. DIRECTOR OF THE DEPARTMENT OF PUBLIC WORKS

MĀLAMA KAKANILUA, an unincorporated association; CLARE H. APANA; and KANILOA LANI KAMAUNU, Petitioners/Plaintiffs-Appellants, vs. DIRECTOR OF THE DEPARTMENT OF PUBLIC WORKS, COUNTY OF MAUI; and MAUI LANI PARTNERS, a domestic partnership, Respondents/Defendants-Appellees.  

The above-captioned consolidated cases have 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 Petitioners/Plaintiffs-Appellants MĀLAMA KAKANILUA, an unincorporated association; CLARE H. APANA; and KANILOA LANI KAMAUNU

     Lance D. Collins of the Law Office of Lance D Collins

Attorneys for Respondent/Defendant-Appellee MAUI LANI PARTNERS:

     Gregory W. Kugle, Veronica A. Nordyke, and David H. Abitbol of Damon Key Leong Kupchak Hastert

Attorneys for Respondent DIRECTOR OF THE DEPARTMENT OF PUBLIC WORKS, COUNTY OF MAUI:

     Victoria J. Takayesu, Corporation Counsel; Kristin K. Tarnstrom, Caleb Rowe, and Kenton S. Werk, Deputies Corporation Counsel    

NOTE:     Order accepting Application for Writ of Certiorari, filed 06/12/24.

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

Brief Description:

This appeal arises out of a dispute over the renewal of a grading permit by Respondent/Defendant-Appellee Director of the Department of Public Works, County of Maui (Director) issued to Respondent/Defendant-Appellee Maui Lani Partners (MLP) for a residential development project on Maui.

Petitioners/Plaintiffs-Appellants Mālama Kakanilua, and its members Clare H. Apana and Kaniloa Lani Kamaunu (Petitioners), filed a Complaint against MLP and the Director in the Circuit Court of the Second Circuit (Circuit Court).  The Complaint asserts three causes of action, including for declaratory relief (Count III).  The Director and MLP filed motions to dismiss the Complaint, which were granted by the Circuit Court.  On October 2, 2018, the Circuit Court entered a judgment of dismissal without prejudice (Judgment) in favor of the Director and MLP, and against Petitioners.

On October 29, 2018, Petitioners filed a Motion for Reconsideration and Relief From Judgment, pursuant to Hawai‘i Rules of Civil Procedure (HRCP) Rule 60(b)(6), alleging the Circuit Court improperly dismissed Count III.  On January 25, 2019, the Circuit Court entered an order denying the Rule 60(b)(6) motion.

On February 23, 2019, Petitioners appealed to the Intermediate Court of Appeals (ICA).  The ICA noted that, because the Rule 60(b)(6) motion was not filed within ten days of the Judgment, it was not a tolling motion under Hawai‘i Rules of Appellate Procedure (HRAP) Rule 4(a)(3).  The ICA thus held the appeal was untimely as to the Judgment and the ICA lacked appellate jurisdiction to review the Judgment.  With regard to the order denying the Rule 60(b)(6) motion, the ICA determined it had appellate jurisdiction and held the Circuit Court applied the correct notice pleading standard in dismissing Count III and Petitioners had failed to establish extraordinary circumstances warranting HRCP Rule 60(b)(6) relief.

This court granted Petitioners’ application for writ of certiorari, which presents two questions:

• Whether the ICA gravely erred by holding [HRCP] Rule 60(b) motions are not post-judgment tolling motions under [HRAP] Rule 4(a)(3) for purposes of extending the time to file a notice of appeal; and, by so holding, further gravely erred by failing to review and correct the errors of the circuit court as to Question Presented No. 2.
• Whether the ICA gravely erred by affirming the circuit court’s dismissal of Count III by applying the wrong standard of review to a circuit court decision informed by an erroneous view of the law.

No. SCWC-22-0000349, Thursday, August 22, 2024, 10:30 a.m.

In the Matter of the Tax Appeal of HAWAIIAN AIRLINES, INC., Petitioner/Plaintiff-Appellant, vs. DEPARTMENT OF TAXATION, Respondent/Defendant-Appellee.

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/Plaintiff-Appellant HAWAIIAN AIRLINES, INC.:

     Thomas Yamachika of Aloha State Tax

Attorneys for Respondent/Defendant-Appellee DEPARTMENT OF TAXATION:

     Nathan S.C. Chee and Mary Bahng Yokota, Deputy Attorneys General

NOTE:     Order accepting Application for Writ of Certiorari, filed 07/08/24.

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

Brief Description:

This is an appeal from a complaint filed in the Tax Appeal Court for the State of Hawaiʻi (“tax court”).  The case stems from a contract between Hawaiian Airlines (“Hawaiian”) and Boeing.  Hawaiian agreed to indemnify Boeing for any taxes Boeing might incur for maintenance supply parts it sold to Hawaiian.  Boeing apparently did not remit Hawaiʻi use or general excise taxes on sales of maintenance parts to Hawaiian and other entities.  The Department of Taxation (“the Department”) conducted an audit of Boeing for the years 2013-2018.  Boeing claimed the general excise tax (“GET”) Aircraft Maintenance Exemption (“exemption”) of Hawaiʻi Revised Statutes (“HRS”) § 237-24.9 (2017) applied to these sales of maintenance parts.

A January 2020 inter-office memorandum of the Department’s auditor recommended against application of the exemption.  Boeing then shared with the Department a letter it received from Hawaiian explaining why it thought the exemption applied.  In a September 24, 2020 email, the auditor indicated disagreement but welcomed further questions.  On May 21, 2021, the Department sent Boeing a letter indicating the audit had been closed and also sent Boeing a notice of proposed assessment, which included an October 2019 Taxpayer Bill of Rights form.

Boeing then asked to pay GET corresponding to parts it sold to Hawaiian.  On June 9, 2021, Hawaiian remitted payment of $1,624,482.75, along with a letter of protest under HRS § 40-35 (2009).  Hawaiian then filed this lawsuit on June 10, 2021, alleging jurisdiction under HRS § 40-35, and seeking a declaration that GET was not owed due to the exemption and seeking a refund.  The Department issued its final assessment on July 26, 2021.

The Department then filed a motion to dismiss this lawsuit.  The tax court granted dismissal based on this court’s opinion in Grace Business Development Corp. v. Kamikawa, 92 Hawaiʻi 608, 994 P.2d 540 (2000).  In Grace, a company made a payment under protest, citing HRS § 40-35, after receiving notice from the Department that it was commencing an audit.  We ruled HRS § 40-35 requires an “actual dispute” before a taxpayer can make a payment under protest and bring an action for recovery of payments made; we held “that, in the absence of a formal administrative decision by the Director, Grace’s payment under protest did not represent an actual dispute within the meaning of HRS §40-35.”  The Intermediate Court of Appeals affirmed.

In its application for a writ of certiorari, Hawaiian argues that:  (1) the final assessment cannot be the only evidence of a formal administrative decision supporting tax court jurisdiction under HRS § 40-35; (2) Grace allowed lower courts to determine whether an official agency communication is such a decision; (3) the administrative exhaustion requirement cannot be a hard jurisdictional rule because this court’s precedent tolerates some error; and (4) where the Department’s own guidance of payments under protest fails to advise taxpayers of an administrative exhaustion requirement, the Department should not be allowed to argue that lack of exhaustion mandates lower court dismissal.

NO. SCWC-18-0000216, Thursday, August 22, 2024, 2 p.m., Department of Public Safety vs. Ruth Forbes

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

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.

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”?