KAUA'I POLICE COMMISSION, by its COMMISSIONERS CHARLES C.C. IONA, CHAIR, MARY K. HERTOG, VICE CHAIR, SAVITA AGARWAL, GERALD BAHOUTH, KEVIN T. MINCE, CATHERINE ADAMS, DONALD K. OKAMI, SR.,  in their official capacities, Plaintiffs-Appellants,
BERNARD P. CARVALHO, JR., in his official capacity as the Mayor of the County of Kaua'i, Defendant-Appellee, AND KAUA'I POLICE COMMISSION, by its COMMISSIONERS CHARLES C.C. IONA, CHAIR, MARY K. HERTOG, VICE CHAIR, SAVITA AGARWAL, GERALD BAHOUTH, KEVIN T. MINCE, CATHERINE ADAMS, DONALD K. OKAMI, SR., in their official capacities, Plaintiffs-Appellants,
BERNARD P. CARVALHO, JR., in his official capacity as the Mayor of the County of Kaua'i, Defendant-Appellee
FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CIVIL NO.
K. Saffery, Marissa L.L. Scott K.D. Shishido, (Goodsill,
Anderson, Quinn & Stifel) for Plaintiffs-Appellants.
Wendell H. Fuji, Anthony F. Suetsugu, (Kobayashi, Sugita
& Goda), for Defendant-Appellee.
FUJISE, PRESIDING JUDGE, LEONARD and GINOZA, JJ.
question presented in this case is whether, under the Charter
of the County of Kaua'i (2010) (Kaua'i Charter), the
authority to suspend and/or otherwise discipline the Chief of
Police of the County of Kaua'i (Police Chief) rests with
the Mayor of the County of Kaua'i or with the Kaua'i
Kaua'i Police Commission, by its Commissioners in their
official capacities (Police Commission), contends that the
Circuit Court of the Fifth Circuit (circuit
court) erred in concluding that the authority to
suspend and/or otherwise discipline the Police Chief lay
solely with Defendant-Appellee Bernard P. Carvalho, Jr., in
his official capacity as the Mayor of the County of
Kaua'i Charter does not clearly address whether the Mayor
or the Police Commission has the authority to suspend and/or
otherwise discipline the Police Chief. We must therefore
consider a number of provisions within the context of the
Kaua'i Charter as a whole. For the reasons discussed
below, we hold that, under the provisions of the Kaua'i
Charter, the Police Commission, which expressly has the right
to appoint and remove the Police Chief and has supervisory
authority over the Police Chief pursuant to a number of
provisions, has the authority to suspend and/or otherwise
discipline the Police Chief.
Police Commission filed a Complaint for Declaratory Relief on
June 27, 2012, seeking a judgment that the Police Commission
holds the sole authority to suspend and/or otherwise
discipline the Police Chief.
September 7, 2012, the Police Commission filed a motion for
summary judgment. In support of the motion, the Police
Commission submitted a declaration from Ernest Kanekoa, Jr.
(Kanekoa), the Chairman of the Police Commission at that
time. In his declaration, Kanekoa asserted, among other
things, the following: on or about February 2, 2012, the
Mayor suspended the Police Chief, Darryl D. Perry, from work
for seven days because of an ongoing investigation stemming
from a complaint filed against high ranking officials within
the Kaua'i Police Department (Police Department) by an
officer employed at police headquarters; after the seven-day
suspension, the Police Chief was placed on administrative
leave; thereafter, the Police Commission unanimously voted to
have the Police Chief return to work and ordered him to do so
on or about February 22, 2012; when the Police Chief returned
to work on February 22, 2012, he was not allowed back into
his office and was informed that the Mayor refused to
reinstate him and that he was still on administrative leave;
the Police Commission and the Mayor disagreed as to whether
the Police Commission or the Mayor had the authority under
the Kaua'i Charter to suspend and/or otherwise discipline
the Police Chief; despite the disagreement, the Police
Commission and the Mayor reached a decision which allowed the
Police Chief to return to work on or about March 12, 2012; on
or about July 13, 2012, the Mayor requested that the Police
Commission further investigate the Police Chief's actions
in conjunction with the internal investigation of the
October 10, 2012, the Mayor filed a cross-motion for summary
judgment. In the cross-motion, the Mayor did not assert any
issue with the facts as presented by the Police Commission,
contending instead that this case should be decided on the
language of the Kaua'i Charter. However, on October 19,
2012, the Mayor filed a memorandum in opposition to the
Police Commission's motion for summary judgment and
submitted therewith the declaration of Gary Heu (Heu), the
Managing Director of the County of Kaua'i at that time.
Heu declared that the Mayor did suspend the Police Chief, but
not for the reasons stated by Kanekoa. Heu further denied
that the Mayor requested the Police Commission to further
investigate the Police Chief, as set forth in Kanekoa's
declaration. Heu's declaration did not elucidate any
other reasons for the suspension or the administrative leave.
In his memorandum, the Mayor asserted that, while he disputes
the accuracy and completeness of some of the factual
statements in Kanekoa's declaration, the disputed facts
were not relevant to the legal issue before the circuit
November 28, 2012, the circuit court entered an order denying
the Police Commission's motion for summary judgment and
granting the Mayor's cross-motion for summary judgment.
On January 2, 2013, the circuit court issued its Final
Judgment for Declaratory Judgment, which states in relevant
to the provisions of the County of Kauai Charter:
1. The Mayor of the County of Kauai is the chief executive
officer of the County of Kauai, and as such, has authority
over all departments and agencies within the executive
branch, unless the Kauai County Charter provides otherwise;
2. The Mayor of the County of Kauai, as the chief executive
officer, has the power to suspend, place on administrative
leave, and/or otherwise discipline the Kauai County Chief of
Police pursuant to the County of Kauai Charter; and
3. While the Kauai Police Commission may remove the Kauai
County Chief of Police in accordance with Section 11.04 of
the County of Kauai Charter, the Kauai Police Commission does
not have the authority to suspend and/or otherwise discipline
the Kauai County Chief of Police.
Police Commission timely appealed.
party contends that this case is moot, but we must consider
mootness as it may affect our jurisdiction in this case.
Kaleikini v. Thielen, 124 Hawai'i 1, 12, 237-
P.3d 1067, 1078 (2010) (providing that mootness is an issue
of subject matter jurisdiction); Bacon v. Karlin, 68
Haw. 648, 650, 727 P.2d 1127, 1129 (1986) (providing that an
appellate court must ensure that it has jurisdiction to hear
and determine each case). In light of the record and the
information provided about the events triggering this
lawsuit, it is unclear if the circumstances giving rise to
this case have been resolved between the parties, such that
the case is moot. See In re Thomas, 73 Haw. 223,
226, 832 P.2d 253, 254 (1992)("A case is moot where the
question to be determined is abstract and does not rest on
existing facts or rights. Thus, the mootness doctrine is
properly invoked where 'events ... have so affected the
relations between the parties that the two conditions for
justiciability relevant on appeal - adverse interest and
effective remedy - have been compromised.'"(quoting
Wong v. Bd. of Regents, Univ. of Haw., 62 Haw. 391,
394, 616 P.2d 201, 203-04 (1980)).
this case is moot, however, either the public-interest
exception or the "capable of repetition, yet evades
review" exception to the mootness doctrine apply.
See Right to Know Comm. v. City Council, City
& County of Honolulu, 117 Hawai'i 1, 9, 175 P.3d
111, 119 (7App. 2007) (discussing the applicability of both
exceptions to the mootness doctrine). Regarding the
A public-interest exception to the mootness doctrine arises
"when the question involved affects the public interest
and it is likely in the nature of things that similar
questions arising in the future would likewise become moot
before a needed authoritative determination by an appellate
court." Johnston v. Ing, 50 Haw. 379, 381, 441
P.2d 138, 140 (1968). "Among the criteria considered in
determining the existence of the requisite degree of public
interest are the public or private nature of the question
presented, the desirability of an authoritative determination
for the future guidance of public officers, and the
likelihood of future recurrence of the question."
Id. (quoting In re Brooks' Estate, 32
Ill.2d 361, 364, 205 N.E.2d 435, 438 (1965)) [.]
Id. (brackets omitted). Here, the issue of who
possesses the authority to suspend and/or otherwise
discipline the Police Chief, a public official, clearly
affects the public interest. Further, given the ongoing
disagreement between the Police Commission and the Mayor, it
is an issue reasonably likely to recur in the future and yet,
because of the need to have a functioning police department,
it seems likely any future dispute would become moot before
an appellate court can decide the issue. The circumstances
are such that an authoritative determination on this issue is
desirable in order to provide guidance for public officers in
the County of Kaua'i.
exception to the mootness doctrine arises when the issue is
"capable of repetition, yet evades review."
Id. Here, as noted above, the issue of whether the
Mayor or the Police Commission is authorized to suspend
and/or otherwise discipline the Police Chief seems reasonably
likely to recur, yet it is likely that any such suspension or
discipline would be served before any judicial review can
occur or, alternatively, that some other resolution would be
reached by the parties (as in this case) to avoid disruption
of the police department's functioning. Thus, this
exception applies as well.
Standard of Review
grant or denial of a motion for summary judgment is reviewed
de novo. Price v. AIG Haw. Ins. Co., 107 Hawai'i
106, 110, 111 P.3d 1, 5 (2005). Neither party contends that
there are genuine issues of material fact precluding summary
judgment. Although the parties disagree over certain facts,
they agree that the disputed facts are not material
to the question decided by the circuit court. See Ralston
v. Yim, 129 Hawai'i 46, 55-56, 292 P.3d 1276,
1285-86 (2013) ("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."). Thus, the question in this
appeal is whether the circuit court correctly applied the law
to the undisputed material facts.
reviewing the circuit court's ruling, we must interpret
the Kaua'i Charter. The interpretation of a county
charter is similar to the interpretation of a statute.
Deietley v. Kaho'ohalahala, 122 Hawai'i 251,
262, 226 P.3d 421, 432 (2010).
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 ...