ICA Upholds Authorization of Maui and HNL Officers Deployed to Big Island TMT Protest

 Flores v. Ballard (ICA January 27, 2021)

Background. In 2017, the Board of Land and Natural Resources approved of the building of a thirty-meter telescope near the summit of Mauna Kea on the Big Island. Construction was delayed for several years due to protests and objections. In 2019, protestors assembled at the road near the summit. They blocked access to physically prevent construction of the telescope. The size of the protest strained resources for the Hawai'i County Police Department. The chief of police on the Big Island asked the Honolulu police chief Susan Ballard and Maui Police Department chief Tivoli Faaumu to support operations in dealing with the protestors.


Officers from Maui County and the City and County of Honolulu went to the Big Island. The next day, Kalani Flores filed a complaint seeking declaratory relief challenging the authority to use police officers from other counties. Chief Ballard and Chief Faaumu filed a motion to dismiss the complaint. The circuit court—Hon. Henry T. Nakamoto presided—granted the motion. Flores appealed.


The Issue is Moot, but that’s Okay. First, the ICA concluded that the issue was moot.


The mootness doctrine is said to encompass the circumstances that destroy the justiciability of a suit previously suitable for determination. . . . Its chief purpose is to assure that the adversary system, once set in operation, remains properly fueled. The doctrine seems appropriate where events subsequent to the judgment of the trial court 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.


Hamilton ex rel. Lethem v. Lethem, 119 Hawai'i 1, 5, 193 P.3d 839, 843 (2008). The ICA first held that the issue is moot. The Maui and Oahu officers are no longer on the Big Island using police powers.


The court, however, can go ahead and review the issue when the “challenged governmental action would evade full review because the passage of time would prevent any single plaintiff from remaining subject to the restriction complained of for the period necessary to complete the lawsuit.” Id. That exception to the mootness doctrine, according to the ICA, applied here. Although construction is on hold and the protestors have withdrawn, nothing in the record establishes the situation—bringing officers from other islands—will not be repeated once construction resumes. The ICA also noted that there was a strong public interest in examining the moot issue. Id. at 6-7, 193 P.3d at 844-845.


No Investigation, No Problem. Flores argued that bringing in officers outside of the Big Island violated HRS § 52D-5(2):


The chief of police of each county . . . shall have and may exercise all powers, privileges, and authority necessary to enforce the laws of the State, in a county other than the county in and for which the chief has been appointed if . . . [t]he exercise of such power, privilege, and authority is required in the pursuit of any investigation commenced within the county in and for which the chief has been appointed[.]


The ICA disagreed. While the court agreed with Flores that the case did not involve an “investigation” requiring the appointment of other police departments, the statute itself did not apply. The Big Island police chief called on the additional officers, not the other way around. This distinction meant that the statute was never invoked, “much less violated.”


Chiefs can Invite other Police Forces to Enforce the Law Without Violating the Statute? The ICA reads HRS § 52D-5(2) from the point of view of the Big Island chief of police calling for outside police forces. The Big Island chief asked for assistance from the other chiefs and they responded by bringing officers. When reading the statute from that point of view, there is no violation. But what about Chief Ballard and Chief Faaumu? It would seem that those chiefs have a limited power to enforce the law in another county when it is “in the pursuit of any investigation.” According to the ICA, the statute is only implicated when the visiting chief requests to enforce the laws outside his or her county. It has no application when they are invited. This interpretation effectively allows any chief to call for officers from other counties without violating the statute and without any investigation needed. It also means that the statute is not violated when chiefs can send officers to other islands for any reason and any purpose so long as they are invited to do so by other police officers.


The Authority to use Off-Island Police Forces Comes from an Agreement and Local Charter. The ICA agreed with the police chiefs that the power to regulate the summit comes from an intra-departmental agreement pursuant to HRS § 78-27. The statute empowers governments within the State to “temporary inter- or intra-governmental assignments or exchanges of employees as a sending or receiving agency.” Id. This authority allows agreements between government agencies. HRS § 78-27(d). The ICA noted that the police departments all executed agreements authorizing use of respective police forces temporarily on other islands. And yet, the ICA noted that these agreements still did not authorize the officers to exercise the police power outside their home county. For that, the ICA turned to the Hawai'i County Charter, which authorizes the Big Island police chief to “[t]rain, equip, maintain, and supervise the force of police officers” and “other powers . . . as required by law.” Hawai'i County Charter § 7-2.4(b) & (e). That authority allowed the Big Island chief to deputize the off-island forces to police the summit.


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