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Kauai Police Commission v. Carvalho

Intermediate Court of Appeals of Hawaii

June 30, 2016

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., [1] in their official capacities, Plaintiffs-Appellants,
v.
BERNARD P. CARVALHO, JR., in his official capacity as the Mayor of the County of Kaua'i, Defendant-Appellee, 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

         APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CIVIL NO. 12-1-0229)

          Edmund K. Saffery, Marissa L.L. Owens, (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.

          OPINION

          GINOZA, J.

         The 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 Police Commission.

         Plaintiff-Appellant Kaua'i Police Commission, by its Commissioners in their official capacities (Police Commission), [2] contends that the Circuit Court of the Fifth Circuit (circuit court)[3] 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 (Mayor).

         The 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.

         I. Background

         The 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.

          On 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 workplace complaint.

         On 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 court.

         On 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 part:

Pursuant 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.

         The Police Commission timely appealed.

         II. Mootness

         Neither 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.[4] 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)).

         Even if 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 (App. 2007) (discussing the applicability of both exceptions to the mootness doctrine). Regarding the public-interest exception:

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.

         Another 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.

         III. Standard of Review

         The 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.

         In 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. Dejetley v. Kaho'ohalahala, 122 Hawai'i 251, 262, 226 P.3d 421, 432 (2010).

         The 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 ...

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