Allegations of Constitutional Violations STILL have to go Through the HLRB

By Benjamin Lowenthal -

HSTA v. Abercrombie (HSC January 17, 2012)

Background. During her last term, Governor Lingle issued a unilateral executive order that furloughed all state employees, restricted spending by the Department of Education, and the University of Hawai'i. The Hawai'i State Teachers Association and the United Public Workers union filed a complaint alleging that the executive order violated the right of public employees to organize under Hawai'i Constitution Art. XIII, Sec. 2, the right to accrued retirement benefits under Haw. Const. Art. XVI, sec. 2, and a violation of the separation of powers. The unions moved for a temporary restraining order, which the circuit court granted in part. Lingle filed a motion to dismiss on the grounds that the Hawai'i Labor Relations Board (HLRB) had exclusive jurisdiction over these matters pursuant to HRS chapter 89. The circuit court rejected the argument, and concluded that the management rights pursuant to HRS § 89-9(d) did not allow Lingle to unilaterally furlough employees. Still, it dismissed a portion of the complaint. The unions appealed the dismissal. Lingle cross-appealed and argued there was no jurisdiction. Before the ICA could decide the matter, the unions applied for a transfer to the HSC, which was granted.

Even when the Questions are Solely Constitutional, Go to the HLRB First. In HGEA v. Lingle, 124 Hawai'i 197, 239 P.3d 1 (2010), the HSC held that the HLRB has exclusive jurisdiction over issues relating to HRS chapter 89--collective bargaining rights. The circuit court should not have ruled on these matters and instead "deferred ruling on the constitutional issues until after the HLRB had the opportunity to resolve the statutory questions." Id. at 200, 239 P.3d at 4. In that case, the complaint raised both statutory issues and constitutional ones.

. . . Even when the Complaint does not Refer to any Statutes. The issue in this case, according to the HSC, was whether the HLRB had exclusive jurisdiction even though the complaint did not allege any statutory-related questions and only raised constitutional violations. "Any controversy concerning prohibited practices may be submitted to the [HLRB] . . . provided that the board shall have exclusive original jurisdiction over such a controversy[.]" HRS § 89-14. Prohibited practices include the refusal to bargain in collectively in good faith, participate in good faith in mediation and arbitration, violate the collective bargaining agreement, or refuse or fail to comply with any provision in HRS chapter 89. HRS § 89-13.

The HSC noted that the unions' complaint made absolutely no reference to HRS chapter 89. Instead, it alleged constitutional violations. Nonetheless, the reasoning underlying HGEA is the same and the HLRB has exclusive jurisdiction. According to the HSC, the plain language of HRS § 89-14 clearly shows that the allegations in the complaint amount to a "controversy concerning prohibited practices."

Why Neil? This is an old dispute between Lingle and the unions. So why is Governor Abercrombie's name on it? While the case was pending on appeal, Lingle left office and Abercrombie was elected and inaugurated. The answer, refreshingly, is clear. "When a public officer is a party to an appeal or other proceeding in the Hawai'i appellate courts in his or her official capacity and during its pendency dies, resigns, or otherwise cases to hold office, the action does not abate and his or her successor is automatically substituted as a party." HRAP Rule 43(c)(1). So ironically, Neil Abercrombie, who promised to end furloughs and enjoys a great relationship with unions, has his name on this one.

How come it's not Moot? And what about the new administration? Unless Abercrombie wanted Lingle's position to prevail, it could have argued that the issue was moot. It would seem to be a good case for the mootness doctrine. After all, the issue of furloughs are long gone. This news is almost as old as the Superferry. Unlike the HGEA opinion, which had a mootness analysis, the HSC here made no reference to the doctrine (or its public-interest exception).

Justice Acoba's Dissent. Justice Acoba dissented. However, his opinion has not been made available yet.

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