Flores v. Ballard.

151 Haw. 357

• Court: Hawaii Supreme Court
• Decided: July 12, 2022
• Docket: SCWC-19-0000841
• Status: Published

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 12-JUL-2022 09:19 AM Dkt. 62 OPA IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

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E. KALANI FLORES, Petitioner/Plaintiff-Appellant,

vs.

ARTHUR LOGAN IN HIS CAPACITY AS CHIEF OF POLICE OF THE CITY AND COUNTY OF HONOLULU; PAUL FERREIRA IN HIS CAPACITY AS CHIEF OF POLICE OF THE COUNTY OF HAWAIʻI POLICE DEPARTMENT; JOHN PELLETIER IN HIS CAPACITY AS CHIEF OF POLICE OF MAUI COUNTY, Respondents/Defendants-Appellees.1

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CIV. NO. 3CC191000190)

JULY 12, 2022

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY NAKAYAMA, J.

This case arises from the controversy surrounding the

construction of the Thirty Meter Telescope (TMT) on Mauna Kea,

1 Pursuant to Hawaiʻi Rules of Appellate Procedure Rule 43(c)(1) (2010), Arthur Logan, Chief of Police of the City and County of Honolulu, has been substituted as a party in place of former Chief of Police Susan Ballard, and John Pelletier, Chief of Police of Maui County, has been substituted as a party in place of former Chief of Police Tivoli Faaumu. *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

located on the Island of Hawaiʻi. Petitioner/Plaintiff-Appellant

E. Kalani Flores (Flores) challenged the presence of police

officers from the Honolulu Police Department (HPD) and Maui

County Police Department (MPD), who were assisting the Hawaiʻi

County Police Department (HCPD) within the County of Hawaiʻi.

The Circuit Court of the Third Circuit (circuit court)

determined that Hawaiʻi Revised Statutes (HRS) § 52D-5 does not

provide for a private right of action and dismissed Flores’s

complaint.

On certiorari, Flores argues that the Intermediate

Court of Appeals (ICA) erroneously affirmed the circuit court’s

“Order Granting Defendant Susan Ballard’s Motion to Dismiss”

(Order Granting Motion to Dismiss). We hold that the circuit

court did not err when it dismissed Flores’s complaint because

there is no private right of action pursuant to HRS § 52D-5. In

addition, the ICA correctly determined that mutual aid between

police departments of different counties is allowed under Hawaiʻi

law. Accordingly, the ICA did not err by affirming the circuit

court’s Order Granting Motion to Dismiss and we affirm the ICA’s

Judgment on Appeal.

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I. BACKGROUND

A. Factual Background

In 2014, Flores requested that the Board of Land and

Natural Resources (the Board) hold a contested case hearing

prior to approving a sublease of land on Mauna Kea from the

University of Hawaiʻi to the TMT International Observatory for

the purpose of constructing the TMT. Flores v. Bd. of Land &

Nat. Res., 143 Hawaiʻi 114, 117-18, 424 P.3d 469, 472-73 (2018).

The Board denied Flores’s request for a contested case hearing

and Flores appealed to the Environmental Court of the Third

Circuit (environmental court), which agreed that Flores had a

constitutional right to a contested case hearing. Id. at 116,

424 P.3d at 471. On secondary appeal, this court reversed the

environmental court’s decision and held that Flores had a

“constitutionally cognizable property interest,” id. at 126, 424

P.3d at 481, but “was not entitled to a contested case hearing

regarding whether [the Board] should consent to the Sublease.”

Id. at 128, 424 P.3d at 483. Thus, construction of the TMT was

allowed to proceed after years of legal challenges.

On July 13, 2019, Flores and a number of other people

assembled at Puʻu Huluhulu near the access road to Mauna Kea’s

summit after police officers blocked public access to Mauna

Kea’s summit. At Puʻu Huluhulu, Flores and the group engaged in

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religious rituals and expressed their reverence for Mauna Kea

and opposition to the TMT project while blocking the access

road. On July 15, 2019, the Chief of HCPD,

Respondent/Defendant-Appellee Paul Ferreira (Chief Ferreira),

and the Chief of HPD, Respondent/Defendant-Appellee Susan

Ballard (Chief Ballard), entered into an interdepartmental

assignment agreement pursuant to HRS § 78-27 (2012),2 in which

2 HRS § 78-27 (2012) provides:

Temporary inter- and intra-governmental assignments and exchanges. (a) With the approval of the respective employer, a governmental unit of this State may participate in any program of temporary inter- or intra-governmental assignments or exchanges of employees as a sending or receiving agency. “Agency” means any local, national, or foreign governmental agency or private agency with government sponsored programs or projects. (b) As a sending agency, a governmental unit of this State may consider its employee on a temporary assignment or exchange as being on detail to a regular work assignment or on leave of absence without pay from the employee’s position. The employee on temporary assignment or exchange shall be entitled to the same rights and benefits as any other employee of the sending agency. (c) As a receiving agency, a governmental unit of this State shall not consider the employee on a temporary assignment or exchange who is detailed from the sending agency as its employee, except for the purpose of disability or death resulting from personal injury arising out of and in the course of the temporary assignment or exchange. The employee on detail may not receive a salary from the receiving agency, but the receiving agency may pay for or reimburse the sending agency for the costs, or any portion of the costs, of salaries, benefits, and travel and transportation expenses if it will benefit from the assignment or exchange. (d) An agreement consistent with this section and policies of the employer shall be made between the sending and receiving agencies on matters relating to the assignment or exchange, including but not limited to supervision of duties, costs of salary and benefits, and travel and transportation expenses; provided that the agreement shall not diminish any rights or benefits to 4 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Chief Ferreira delegated police authority to HPD officers who

were temporarily assigned to support HCPD operations relating to

the TMT construction project. On July 16, 2019, the Chief of

MPD, Respondent/Defendant-Appellee Tivoli Faaumu (Chief Faaumu),

entered into an identical interdepartmental assignment agreement

with Chief Ferreira (collectively, the Inter-Departmental

Agreements).3

On July 16, 2019, HPD and MPD officers arrived on the

Island of Hawaiʻi to provide support to HCPD. Chief Ferreira

deputized the assisting officers from HPD and MPD and instructed

which an employee of a governmental unit of this State is entitled under this section. (e) As a receiving agency, a governmental unit of this State may give the employee of the sending agency on a temporary assignment or exchange an exempt appointment and grant the employee rights and benefits as other exempt appointees of the receiving agency if it will benefit from the assignment or exchange.

(Emphasis added.)

3 The Inter-Departmental Agreements contained the following recitals:

WHEREAS, HCPD desires the services of [HPD/MPD] personnel and [HPD/MPD] has agreed to the temporary assignment of [HPD/MPD] personnel and to support and manage police operations in conjunction with the Thirty Meter Telescope Project (“TMT Project”) and any other assignment as deemed necessary by the HCPD Chief of Police or his designee with the approval of [HPD/MPD]; and WHEREAS, this employment is a temporary interdepartmental assignment and this employment is made under the provisions of [HRS §] 78-27(a-d).

While the Inter-Departmental Agreements cited HRS § 78-27 as authority for the inter-department assignments from HPD and MPD to HCPD, the “Delegation of Police Authority” attached to each agreement (Delegations) cited HRS § 52D-5 as authority for Chief Ferreira to deputize the assisting officers to act in a law enforcement capacity within the County of Hawaiʻi. 5 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

them to assist with clearing the access road to Mauna Kea’s

summit so that the construction equipment could proceed. HPD

officers assisted Chief Ferreira until July 17, 2019, and then

withdrew once it was determined that their assistance was no

longer needed.4

B. Circuit Court Proceedings5

On July 17, 2019, Flores filed a “Complaint for

Declaratory and Injunctive Relief” in the circuit court naming

Chief Ballard, Chief Faaumu, and Chief Ferreira (collectively,

the Chiefs of Police) as Defendants. Flores challenged the

presence and legal authority of police officers from HPD and MPD

within the County of Hawaiʻi. Flores’s complaint alleged that

the Chiefs of Police violated HRS § 52D-56 by using HPD and MPD

4 Presumably, MPD officers also withdrew on July 17, 2019.

5 The Honorable Henry T. Nakamoto presided.

6 HRS § 52D-5 (2012) provides:

Powers of the chief of police outside own county. The chief of police of each county and any duly authorized subordinates 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: (1) The 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; and (2) The concurrence of the chief of police of the county in which the power, privilege, and authority sought to be exercised is obtained.

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officers to assist HCPD and that the HPD and MPD officers lacked

legal authority to exercise police powers within the County of

Hawaiʻi. Flores sought as relief (1) a judgment declaring that

the Chiefs of Police violated HRS § 52D-5 by using HPD and MPD

officers within the County of Hawaiʻi; (2) preliminary and

permanent injunctions prohibiting the Chiefs of Police from

violating HRS § 52D-5; (3) a temporary restraining order;7 and

(4) attorney’s fees pursuant to the private attorney general

doctrine.

Chief Ballard filed a motion to dismiss Flores’s

complaint (Motion to Dismiss) pursuant to Hawaiʻi Rules of Civil

Procedure (HRCP) Rule 12(b)(6).8 Chief Ballard argued that

Flores’s complaint failed to state a claim upon which relief

could be granted because there is no private right of action for

which a plaintiff can seek a remedy for an alleged violation of

HRS § 52D-5. Citing to Whitey’s Boat Cruises, Inc. v. Napali-

Kauai Boat Charters, Inc., 110 Hawaiʻi 302, 312, 132 P.3d 1213,

1223 (2006), as corrected (Apr. 25, 2006), Chief Ballard

7 Flores also filed an ex parte motion seeking a temporary restraining order enjoining HPD and MPD officers from assisting HCPD with “keeping roadways clear for the movement of construction equipment and vehicles on Hawaiʻi Island, and any police activities related thereto, including, but not limited to, effectuating arrests, traffic control, [and] transportation of detainees” in the area of the protests. (Internal quotation marks omitted.)

8 HRCP Rule 12(b) (2000) provides in relevant part “that the following defenses may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted.” 7 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

contended that HRS § 52D-5 does not create a private right of

action based on the

following factors: (1) whether the plaintiff is “one of the class for whose especial benefit the statute was enacted”; (2) whether there is “any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one”; and (3) whether a private right of action would be “consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff.”

Applying these factors to HRS § 52D-5, Chief Ballard argued that

(1) the statute was enacted to protect local jurisdictions from

outside investigators and to assure cooperation between the

chiefs of police; (2) the statute expresses no legislative

intent to create a private remedy; and (3) a private remedy

would be inconsistent with the purpose of the statutory scheme.

Chief Ballard also argued that Flores’s claim was moot because

HPD officers were no longer on the Island of Hawaiʻi for any

purpose relating to the TMT.

Chief Faaumu joined in Chief Ballard’s Motion to

Dismiss. Chief Faaumu agreed with Chief Ballard’s arguments

that there is no private right of action for alleged violations

of HRS § 52D-5 and that the case was moot.

Chief Ferreira also joined in Chief Ballard’s Motion

to Dismiss and agreed that there is no private right of action

for alleged violations of HRS § 52D-5. Chief Ferreira took no

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position on whether the case was moot because this argument did

not apply to him as Chief of HCPD.

On September 12, 2019, Flores filed a memorandum in

opposition to Chief Ballard’s Motion to Dismiss (Opposition).

Flores argued that (1) HRS § 52D-5 creates an implied private

right of action; and (2) his case was not moot because

exceptions to the mootness doctrine applied. Without seeking

leave of the circuit court, Flores attached to his Opposition a

declaration by Flores, a declaration by Flores’s counsel, and

“Exhibits” (1) through (8).9

On September 17, 2019, Chief Ballard filed a reply

memorandum in which she argued, inter alia, that (1) the

declarations and exhibits attached to Flores’s Opposition were

improper and should be ignored; (2) HRS § 52D-5 was not

implicated by HPD and MPD officers responding to Chief

Ferreira’s request for assistance; and (3) the intergovernmental

assignment of police officers from HPD and MPD to HCPD was

authorized by HRS § 78-27.

On September 18, 2019, Flores filed an ex parte motion

for leave to file a supplemental declaration and three

additional exhibits in support of Flores’s Opposition. A

9 The exhibits are various news articles documenting assistance by HPD and MPD on Mauna Kea and letters and emails from Flores’s counsel to the respective county counsel requesting assurance that HPD and MPD would not assist HCPD with regard to the TMT operations again. 9 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

declaration by Flores’s counsel and “Proposed Exhibits” (9)

through (11) were appended to the ex parte motion (Supplemental

Filing).

On September 19, 2019, the circuit court granted

Flores’s ex parte motion and ordered that the declaration of

counsel and Proposed Exhibits (9) through (11) be included in

Flores’s Opposition.10

The circuit court heard Chief Ballard’s Motion to

Dismiss and Chief Faaumu’s and Chief Ferreira’s joinders on

September 20, 2019. Regarding Chief Ballard’s claim that the

Inter-Departmental Agreements were authorized by HRS § 78-27,

Flores argued that HRS § 78-27 did not provide legal authority

for HPD and MPD to exercise police powers on the Island of

Hawaiʻi. After hearing argument, the circuit court made an oral

ruling:

The Court notes that the Court has reviewed the legislative history of [HRS § 52D-5] . . . . The Court views as the purpose is [sic] to provide continuity to police investigations from one county jurisdiction to another and to also protect the local control and assure its cooperation through the provisions of notification to a county chief of police when investigations are to be pursued within this jurisdiction or a jurisdiction.

10 In the declaration, Flores’s counsel attested that he required further discovery and was still waiting for the Chiefs of Police to produce documents. Despite the fact that Flores sought leave to supplement his Opposition with matters outside the pleadings, Flores claimed “this case is not ripe for summary judgment because discovery is outstanding.” Exhibits (9) through (11) are the responses to Flores’s first request for production of documents by Chief Ferreira, Chief Faaumu, and Chief Ballard, respectively, including copies of the Inter-Departmental Agreements. 10 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

So the Court concludes that there is no private right of action pursuant to HRS Section 52D-5. Therefore, the motion to dismiss is granted.

On November 12, 2019, the circuit court entered the

Order Granting Motion to Dismiss, citing as the reason for the

decision that “there is no private right of action pursuant to

[HRS] § 52D-5.”11 The circuit court also entered Judgment in

favor of the Chiefs of Police and against Flores on November 12,

2019.

C. ICA Proceedings

1. Opening Brief

On December 6, 2019, Flores filed a notice of appeal.

Flores argued that the circuit court erred by concluding that

HRS § 52D-5 does not provide a private right of action.12

First, Flores argued that the language of HRS § 52D-5

evinces a legislative intent to include a private right of

action. Flores reasoned that because the Legislature included a

“territorial limit[]” on where police officers can exercise

their police powers, HRS § 52D-5 creates a right entitling

Flores to be “free from off island county police officers

11 The circuit court never ruled on Chief Ballard’s objections to the two declarations and eight exhibits attached to Flores’s Opposition.

12 Although Flores’s opening brief stated four points of error, each alleged error is actually an argument for why HRS § 52D-5 includes a private right of action. 11 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

exercising police powers on Hawaiʻi Island.” Flores also

intimated that a police officer making an arrest outside of the

officer’s home county violates the arrestee’s Fourth Amendment

rights. Flores further asserted that when enacting HRS § 52D-5,

the Legislature included the “requirement of hometown

origination to avert the evil of off island county police

invasion” because “off island police” are more likely to violate

an individual’s rights. According to Flores, the Legislature

“did not envision or intend for off island police to go to

another jurisdiction” except to investigate a crime related to

“their home turf.”

Second, Flores argued that HRS § 52D-5 implicitly

contains a private right of action in order to allow judicial

review of “illegitimate police activity beyond a county police’s

home territory.” Flores contended that if the Legislature

actually intended to preclude a private right of action, and

thus escape judicial review, “that preclusion violates the

separation of powers doctrine.” Flores maintained that because

the Hawaiʻi Attorney General acquiesced and supported the actions

of the Chiefs of Police, which violated HRS § 52D-5, there must

be an implied right of action available to facilitate judicial

review of police activity outside an officer’s home

jurisdiction. Flores argued that his complaint seeking

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declaratory relief was consistent with the private attorney

general doctrine, which permits a private citizen to collect

attorney’s fees when enforcing an alleged violation of state law

where the government has failed to do so.

Third, Flores argued that HRS § 52D-5 must include a

private right of action because it lacks an explicit penalty or

any other mechanism for enforcement. Flores maintained that

Hawaiʻi case law precludes a private right of action for tort

damages only in statutes which already contain enforcement or

penalty mechanisms, which HRS § 52D-5 does not. Flores also

contended that it is an open question whether declaratory and

injunctive relief are available when a statute contains an

enforcement mechanism.

2. Answering Brief

The Chiefs of Police filed an answering brief on

August 5, 2020.

First, the Chiefs of Police argued that the mutual aid

provided by HPD and MPD to Chief Ferreira was authorized by HRS

§ 78-27, rather than HRS § 52D-5 which is Hawaiʻi’s “hot [or

fresh] pursuit” statute. The Chiefs of Police contended that

HRS § 78-27 is Hawaiʻi’s “mutual aid” statute, which allows for

mutual aid — including mutual aid for police services — so long

as an oral or written agreement exists between the sending and

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receiving agencies. The Chiefs of Police explained that in this

case, Chief Ferreira entered into written agreements with Chief

Ballard and Chief Faaumu for the inter-departmental assignment

of police officers.13

Second, the Chiefs of Police argued that because

HRS § 78-27 authorized the mutual aid that Flores challenged,

the ICA need not reach the issue of whether the mutual aid was

authorized under HRS § 52D-5. However, the Chiefs of Police

maintained that the circuit court decision could also be

affirmed on the basis of HRS § 52D-5 because (1) Flores was not

arrested and thus could not challenge whether HPD and MPD had

legal authority to act within the County of Hawaiʻi; (2) HRS

§ 52D-5 does not create a private right of action;14 and

(3) Chief Ferreira’s power to deputize HPD and MPD officers is

13 The Chiefs of Police also cited HRS § 127A-12(c)(2) (Supp. 2017) as a statutory basis for mutual aid during emergencies. HRS § 127A-12(c)(2) provides in relevant part:

(c) The mayor may exercise the following powers pertaining to emergency management:

. . . .

(2) Sponsor and develop mutual aid plans and agreements for emergency management between one or more counties, and other governmental, private-sector, or nonprofit organizations, for the furnishing or exchange of . . . police services . . . and other . . . personnel[] and services as may be needed.

14 Chief Ballard repeated the same arguments made before the circuit court for why HRS § 52D-5 does not create a private right of action. 14 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

not limited by HRS § 52D-5, because the Charter of the County of

Hawaiʻi (CCH) § 7-2.4(e) grants Chief Ferreira “such other

powers, duties, and functions as may be . . . provided by law.”

3. Reply Brief

Flores filed a reply brief on August 31, 2020. In his

reply brief, Flores rejected the Chiefs of Police’s claim that

HRS § 78-27 authorized mutual aid by HPD and MPD, and insisted

that “off island police officers” may only use their police

powers in other counties when the requirements of HRS § 52D-5

are satisfied. Flores argued that, pursuant to HRS § 78-27(b),

employees on a temporary assignment are “entitled to the same

rights and benefits as any other employee of the sending

agency,” but that the exercise of police powers is neither a

right nor a benefit.

Flores insisted that HRS § 127A-12 was inapplicable

because the Chiefs of Police “conspired to violate HRS § 52D-5”

before any emergency was declared on Mauna Kea. Additionally,

Flores argued that he satisfied the requirements of standing for

declaratory relief, notwithstanding the fact that he himself was

not arrested. Finally, Flores reiterated the arguments made in

his opening brief that HRS § 52D-5 creates a private right of

action.

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4. Amicus Curiae Brief

The International Municipal Lawyers Association, Inc.

(the IMLA)15 filed a motion for leave to file an amicus curiae

brief in support of the Chiefs of Police, which the ICA granted.

The IMLA explained that mutual aid by law enforcement

is an essential form of intergovernmental cooperation that is

common both in Hawaiʻi16 and throughout the United States.

According to the IMLA, mutual aid “enables jurisdictions to

access additional resources when the need arises . . . [and] to

effectively utilize all available resources, coordinate

planning, and minimize conflict in order to ensure a timely and

efficient response.” The IMLA noted that the sharing of

resources within Hawaiʻi is especially important because people

and resources are not evenly distributed throughout the state17

15 The IMLA described itself and its interest in this case as follows:

The [IMLA] is a non-profit, professional organization that has been an advocate and resource for local government lawyers since 1935. IMLA serves as an international clearinghouse of legal information and cooperation on municipal legal matters. IMLA has a significant interest in the issue presented here, which is the validity of mutual aid agreements between and among local and municipal governments, including agreements relating to the sharing of law enforcement resources.

16 The IMLA cited as recent examples of mutual aid in Hawaiʻi the disaster responses after Hurricane Iniki in 1992 and after the eruption of Kilauea in 2018.

17 One example of this uneven distribution of resources is that Honolulu County covers approximately 600 square miles, but has four times the number 16 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

and help from neighboring states cannot arrive in a timely

fashion.

Second, the IMLA argued that mutual aid is authorized

by HRS § 78-27, which provides for temporary assignment of

personnel between state agencies, and by HRS § 127A, which

provides for rendering of mutual aid during an emergency. The

IMLA noted that the Legislature enacted HRS chapter 127A to

“ensure that the preparations of this State will be adequate” to

address the “existing and increasing possibility of the

occurrence of disasters or emergencies.” Specifically, HRS

§ 127A-12(c)(2) permits county mayors to “‘[s]ponsor and develop

mutual aid plans and agreements for emergency management between

one or more counties’ for the provision of various services,

including ‘police services’ and ‘personnel necessary to provide

or conduct those services.’” (Alteration in original.) The

IMLA observed that even absent specific statutory authority,

courts in other jurisdictions have upheld intergovernmental

agreements for mutual aid under general principles of contract

law.

Third, the IMLA maintained that HRS § 52D-5, Hawaiʻi’s

hot- or fresh-pursuit statute, does not limit the ability of

of police officers as the County of Hawaiʻi, which covers more than 4,000 square miles. 17 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

municipalities to enter into law enforcement mutual aid

agreements. The IMLA suggested distinguishing between a mutual-

aid statute, which benefits the receiving agency, and a hot-

pursuit statute which benefits the sending agency. According to

the IMLA, “one is not a substitute for the other, nor does one

preclude the other.” Thus, the IMLA urged the ICA to affirm the

circuit court and send a “clear signal . . . that mutual aid

agreements like the one at issue here are broadly authorized

under HRS § 78-27.”

5. ICA’s Published Opinion

The ICA published its opinion on January 27, 2021.

Flores v. Ballard, 149 Hawaiʻi 81, 482 P.3d 544 (App. 2021). The

ICA affirmed the circuit court’s judgment on other grounds.18

Id. at 92, 482 P.3d at 555.

As relevant here, the ICA considered whether HRS

§ 52D-5 was implicated by HPD and MPD officers assisting Chief

Ferreira on Mauna Kea. Id. at 88-89, 482 P.3d at 551-52. The

ICA reasoned that HRS § 52D-5 applies when a sending police

department seeks permission to exercise police authority in

18 The ICA cited Tauese v. State, Dep’t of Labor & Indus. Relations, 113 Hawaiʻi 1, 15 n.6, 147 P.3d 785, 799 n.6 (2006), for the proposition that “the result will not be disturbed on the ground that the circuit court gave the wrong reason for its ruling.” Flores v. Ballard, 149 Hawaiʻi 81, 88, 482 P.3d 544, 551 (App. 2021). The ICA noted that “[i]n our de novo review we ‘may affirm a grant of summary judgment on any ground appearing in the record, even if the circuit court did not rely on it.’” Id. (citation omitted).

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another county “in the pursuit of any investigation commenced

within” the sending agency’s home county. Id. at 89, 482 P.3d

at 552. But here, the ICA noted, it was Chief Ferreira who

requested officers from HPD and MPD “to assist HCPD in handling

matters on Hawaiʻi Island that strained HCPD’s resources.” Id.

According to the ICA, “[n]either Chief Ballard nor Chief Faaumu

purported to exercise police authority in the County of Hawaiʻi

‘in the pursuit of any investigation commenced within’ the City

and County of Honolulu or the County of Maui.” Id. (quoting HRS

§ 52D-5). Thus, the ICA concluded that HRS § 52D-5 was neither

implicated nor violated19 and “[i]t was thus appropriate for the

circuit court to dismiss Flores’s complaint based upon the

alleged violation of HRS § 52D-5 by the Chiefs of Police.” Id.

Second, the ICA considered whether there was other

statutory authority for HPD and MPD to support HCPD’s

TMT-related operations. Id. at 89-91, 482 P.3d at 552-54.

Specifically, the ICA considered whether the Inter-Departmental

Agreements were authorized by HRS § 78-27, as Chief Ballard

argued. Id. The ICA pointed out that HRS § 78-27(d) provides

parameters for the type of agreement:

An agreement consistent with this section and policies of the employer shall be made between the sending and receiving agencies on matters relating to the assignment or

19 The ICA did not reach the issue of whether HRS § 52D-5 creates a private right of action because it concluded that the statute was not violated. Id. at 89, 482 P.3d at 552. 19 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

exchange, including but not limited to supervision of duties, costs of salary and benefits, and travel and transportation expenses; provided that the agreement shall not diminish any rights or benefits to which an employee of a governmental unit of this State is entitled under this section.

Id. at 90, 482 P.3d at 553. The ICA noted that HRS § 78-27

contemplates that county police departments could be both

“sending” and “receiving” agencies, because “Act 253 of the 2000

legislative session, which resulted in the enactment of HRS

§ 78-27, mentions ‘police’ three times.”20 Id. The ICA reasoned

that HRS § 78-27 “protects the temporarily assigned police

officers’ civil service, collective bargaining, workers’

compensation, and other employment rights and benefits during

the temporary assignment.”21 Id. Thus, the ICA concluded that

20 The ICA pointed out that “[s]ection 74 refers to workers compensation benefits for police officers. Section 96 refers to a collective bargaining unit for police officers. Section 100 refers to resolution of labor grievances involving the police officers’ collective bargaining unit. 2000 Haw. Sess. Laws Act 253.” Id. at 90 n.8, 482 P.3d at 553 n.8.

21 The ICA also noted that the Inter-Departmental Agreements contained the following provisions consistent with HRS § 78-27(d):

3. It is the understanding of the parties that the State Attorney General’s Office has agreed to pay for and/or reimburse the Sending Agency for the costs, any portion of the costs, overtime, benefits, and travel and transportation expenses on behalf of the Receiving Agency. However, HCPD shall ultimately be responsible for said costs and expenses should the State Attorney General’s Office fail to pay for and/or reimburse the Sending Agency for any expenditures related to the TMT Project and any other assignment as deemed necessary by the HCPD Chief of Police or his designee with the approval of [HPD/MPD]. Such expenses may be paid for or reimbursed to the [HPD/MPD].

4. The [HPD/MPD] personnel are to carry out and observe all lawful instructions and orders issued by the 20 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

HRS § 78-27 authorized the Inter-Departmental Agreements for the

temporary assignment of HPD and MPD officers to support HCPD.

Id. at 91, 482 P.3d at 554.

Third, the ICA considered whether HPD and MPD officers

were authorized to exercise police powers within the County of

Hawaiʻi — which was the conduct specifically challenged by Flores

in his lawsuit. Id. at 91-92, 482 P.3d at 554-55. The

Delegations signed by Chief Ferreira and attached to each of the

Inter-Departmental Agreements state:

Under the authority of the Chief of Police, of Hawaiʻi County Police Department, the following officers of the [HPD/MPD] (please see attached list), are granted full police officer power, privilege and authority, under HRS [§] 52D-5. The purpose of this delegation of authority, while assigned to Hawaiʻi [C]ounty will be to support and manage police operations in conjunction with the Thirty Meter Telescope project and any other assignment as deemed necessary by the Hawaiʻi County Police Chief or his designee. This delegation of Police authority shall be effective from July 16, 2019 until the end of police

appointing authority or designee relative to employment.

5. The [HPD/MPD] personnel shall perform all of the work under the supervision of an immediate supervisor in the Sending Agency or any other person in the Receiving Agency who has the authority to supervise the activities.

9. This employment will be subject to all laws, ordinances, and rules and regulations having the effect of law governing employment of public employees; and

10. Any and all collective bargaining agreements pertinent to [HPD/MPD] personnel’s regular positions with the [HPD/MPD] shall apply, including but not limited to salary.

Id. at 90-91, 482 P.3d at 553-54. 21 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

operations for this project as deemed necessary by the Hawaiʻi County Chief of Police.

Id. at 91, 482 P.3d at 554 (emphasis added). The ICA described

the Delegations’ citation to HRS § 52D-5 as “inapt,” because

that statute “does not apply to the circumstances described by

the Delegations.” Id.

However, the ICA surmised that Chief Ferreira was

authorized to delegate police powers to HPD and MPD officers by

other statutes: HRS §§ 52D-3,22 52D-6,23 and Article VII, Chapter

224 of the CCH (CCH Article VII). Id. at 91-92, 482 P.3d at 554-

22 HRS § 52D-3 (2012) provides: “The chief of police shall have the powers and duties as prescribed by law, the respective county charter, and as provided by this chapter.”

23 HRS § 52D-6 (2012) provides: “The chief of police may appoint officers and other employees under such rules and at such salaries as are authorized by law. Probationary appointment, suspension, and dismissal of officers and employees of the police department shall be as authorized by law.” (Emphasis added.)

24 Article VII, Chapter 2 of the CCH (2018) provides, in relevant part:

Section 7-2.1. Organization.

There shall be a police department consisting of a police commission, a chief of police, a deputy chief of police, and the necessary staff.

Section 7-2.4. Powers, Duties, and Functions of the Chief of Police.

The chief of police shall be the administrative head of the police department and shall:

(a) Be responsible for the preservation of the public peace, prevention of crime, detection and arrest of offenders against the law, protection of the rights of persons and property, and enforcement and prevention of violations of all laws of the state and 22 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

55. Specifically, the ICA reasoned that (1) HRS § 52D-3 grants

each chief of police “the powers and duties as prescribed by

law, the respective county charter, and as provided by this

chapter[;]” (2) CCH Article VII § 7-2.4(b) empowers the chief of

HCPD to “[t]rain, equip, maintain, and supervise the force of

police officers[;]” and (3) HRS § 52D-6 allows the chief of

police to “appoint officers . . . under such rules . . . as are

authorized by law.” Id.

The ICA described the relationship between HRS § 78-27

and the statutes authorizing Chief Ferreira’s delegation of

authority as follows:

HRS § 78-27 is a law that authorizes Chief Ferreira to temporarily receive police officers from another county’s police department to support HCPD operations on Hawaiʻi Island. HRS § 78-27 also authorizes Chief Ballard and Chief Faaumu to temporarily assign police officers from their respective departments to another county’s police department. The Hawaiʻi County Charter and HRS Chapter 52D authorize Chief Ferreira to appoint and supervise police officers in the County of Hawaiʻi, including those temporarily assigned to Hawaiʻi Island from Honolulu and Maui counties.

ordinances of the county and all regulations made in accordance therewith.

(b) Train, equip, maintain, and supervise the force of police officers and employees.

(e) Have such other powers, duties, and functions as may be required by the police commission or provided by law.

(Emphasis added.) 23 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Id. at 92, 482 P.3d at 555. Thus, the ICA held that “[a]pplying

the plain language of HRS §§ 52D-3, 52D-6, and 78-27, and

Chapter 2 of the Hawaiʻi County Charter, in pari materia . . .

execution and performance of the Agreements and the Delegations

by the Chiefs of Police in this case was authorized by law.”

Id.

Accordingly, the ICA affirmed the circuit court’s

November 12, 2019 Order Granting Motion to Dismiss and Judgment

in favor of the Chiefs of Police. Id. The ICA entered its

corresponding Judgment on Appeal on February 24, 2021. Flores

filed an application for writ of certiorari on April 22, 2021.

II. STANDARDS OF REVIEW

A. Motion to Dismiss A circuit court order granting a motion to dismiss is reviewed de novo. Hungate v. Law Office of David B. Rosen, 139 Hawaiʻi 394, 401, 391 P.3d 1, 8 (2017). “A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief.” In re Estate of Rogers, 103 Hawaiʻi 275, 280, 81 P.3d 1190, 1195 (2003) (quoting Blair v. Ing, 95 Hawaiʻi 247, 252, 21 P.3d 452, 457 (2001)). Our review is “strictly limited to the allegations of the complaint,” which we view in the light most favorable to the plaintiff and deem to be true. Id. at 280-81, 81 P.3d at 1195-96. (quoting Blair, 95 Hawaiʻi at 252, 21 P.3d at 457). However, “the court is not required to accept conclusory allegations on the legal effect of the events alleged.” Hungate, 139 Hawaiʻi at 401, 391 P.3d at 8.

Civ. Beat Law Ctr. for the Pub. Int., Inc. v. City & Cnty. of

Honolulu, 144 Hawaiʻi 466, 474, 445 P.3d 47, 55 (2019).

24 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

B. Summary Judgment

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

HRCP Rule 12(b).

The appellate court reviews “the circuit court’s grant

or denial of summary judgment de novo.” Querubin v. Thronas,

107 Hawaiʻi 48, 56, 109 P.3d 689, 697 (2005). “Summary judgment

is appropriate ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of

material fact and the moving party is entitled to a judgment as

a matter of law.’” Amfac, Inc. v. Waikiki Beachcomber Inv. Co.,

74 Haw. 85, 104, 839 P.2d 10, 22 (1992) (citing HRCP Rule 56(c)

(1990)) (citation omitted).

C. Statutory Interpretation

“Questions of statutory interpretation are questions

of law to be reviewed de novo under the right/wrong standard.”

Nakamoto v. Kawauchi, 142 Hawaiʻi 259, 268, 418 P.3d 600, 609

(2018).

III. DISCUSSION

On certiorari, Flores argues that the ICA erred by

(1) ignoring the plain language of HRS § 52D-5 and relying on 25 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

HRS §§ 52D-3, 52D-5, 78-27, and CCH Article VII to “effectively

render[] HRS § 52D-5 meaningless”; (2) holding that HRS § 52D-5

did not apply to the facts alleged in Flores’s complaint,

despite the fact that the Delegations cited as authority HRS

§ 52D-5; (3) concluding that HPD and MPD officers were properly

deputized and acting under the authority of HCPD; and

(4) failing to address whether Flores had a private right of

action to challenge the violation of HRS § 52D-5. For the

following reasons, Flores’s arguments lack merit.

A. There is no private right of action under HRS § 52D-5.

The circuit correctly determined that, based on the

legislative history and purpose of HRS § 52D-5, there is no

private right of action under that statute. Here, Flores’s

complaint and the Chiefs of Police’s Motion to Dismiss were

filed pursuant to HRS § 52D-5, which states:

Powers of chief of police outside own county. The chief of police of each county and any duly authorized subordinates 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: (1) The 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; and (2) The concurrence of the chief of police of the county in which the power, privilege, and authority sought to be exercised is obtained.

26 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

In his Opposition, Flores contended that declaratory

relief was available under HRS § 632-125 to determine (1) whether

HRS § 52D-5 was applicable; and (2) if HRS § 52D-5 was

applicable, whether the Chiefs of Police violated HRS § 52D-5.

However, Flores cannot bring an action under HRS § 632-1 for

25 HRS § 632-1 (2016) provides:

Jurisdiction; controversies subject to. (a) In cases of actual controversy, courts of record, within the scope of their respective jurisdictions, shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed, and no action or proceeding shall be open to objection on the ground that a judgment or order merely declaratory of right is prayed for; provided that declaratory relief may not be obtained in any district court, or in any controversy with respect to taxes, or in any case where a divorce or annulment of marriage is sought. Controversies involving the interpretation of deeds, wills, other instruments of writing, statutes, municipal ordinances, and other governmental regulations may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right. (b) Relief by declaratory judgment may be granted in civil cases where an actual controversy exists between contending parties, or where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which the party has a concrete interest and that there is a challenge or denial of the asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment will serve to terminate the uncertainty or controversy giving rise to the proceeding. Where, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed; but the mere fact that an actual or threatened controversy is susceptible of relief through a general common law remedy, a remedy equitable in nature, or an extraordinary legal remedy, whether such remedy is recognized or regulated by statute or not, shall not debar a party from the privilege of obtaining a declaratory judgment in any case where the other essentials to such relief are present.

27 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

declaratory relief unless HRS § 52D-5 provides for a private

right of action. See Alakaʻi Na Keiki, Inc. v. Matayoshi, 127

Hawaiʻi 263, 285, 277 P.3d 988, 1010 (2012) (citing Cnty. of Haw.

v. Ala Loop Homeowners, 123 Hawaiʻi 391, 407 n.20, 235 P.3d 1103,

1119 n.20 (2010)) (“In order for a party to sue for enforcement

under HRS § 632-1, HRS chapter 103F must provide for an express

or implied private right of action.”). Thus, we must determine

whether HRS § 52D-5 creates a private right of action.

This court has noted that “[r]equirements imposed by

statutes do not necessarily give rise to a private right of

action.” Hungate, 139 Hawaiʻi at 405, 391 P.3d at 12 (citing

Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979)). This court

has stated:

In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose [e]special benefit the statute was enacted; . . . that is, does the statute create a . . . right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?

Whitey’s Boat Cruises, 110 Hawaiʻi at 312, 132 P.3d at 1223

(quoting Reliable Collection Agency, Ltd. v. Cole, 59 Haw. 503,

507, 584 P.2d 107, 109 (1978)) (alterations in original).

Furthermore, “[w]hile each factor is relevant, ‘the key factor’

is whether the legislature ‘intended to provide the plaintiff

28 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

with a private right of action.’” Hungate, 139 Hawaiʻi at 406,

391 P.3d at 13 (quoting Whitey’s Boat Cruises, 110 Hawaiʻi at 313

n.20, 132 P.3d at 1224 n.20).

1. Flores is not part of the class for whose especial benefit the statute was enacted.

As the Chiefs of Police pointed out in their Motion to

Dismiss, the legislative history of HRS § 52D-5 demonstrates

that the statute was not enacted to allow a private citizen to

bring a claim for a violation of the statute.

The 1971 House Journal Standing Committee Report

provides that:

The purpose of this bill is to add a new section to Chapter 52, Hawaii Revised States [sic], which would provide continuity to police investigations from one county jurisdiction to another. The bill allows enforcement powers to police chiefs outside their own county if it is required in pursuit of an investigation which commenced in their county and also if the concurrence of the chief in whose county the power is sought to be exercised is first obtained.

H. Stand. Comm. Rep. No. 703, in 1971 House Journal, at 990.

The Joint Select Committee of Kauaʻi, Maui, Oʻahu, and

Hawaiʻi Representatives noted that:

The purpose of this bill is to add a new section to provide continuity to police investigations from one jurisdictional region to another.

This new section will continue to protect local control and assure cooperation through the provisions of notification to a county chief of police when investigations are to be pursued within his jurisdiction. The provisions for crossing county lines is contingent upon the fact the investigation must commence in the home county

29 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

of the investigator. It also assures protection of local jurisdictions from encroachment by outside investigators.

H. Stand. Comm. Rep. No. 608, in 1971 House Journal, at 947-48.

The purpose of enacting HRS § 52D-5 was therefore to

“provide continuity to police investigations from one county

jurisdiction to another.” H. Stand. Comm. Rep. No. 703, in 1971

House Journal, at 990. The legislative history of HRS § 52D-5

does not contemplate a private citizen bringing a claim against

the Chiefs of Police for a violation of the statute. See H.

Stand. Comm. Rep. No. 703, in 1971 House Journal, at 990.

Instead, the legislative history discusses “enforcement powers”

of the police chiefs outside of their own jurisdictions. H.

Stand. Comm. Rep. No. 703, in 1971 House Journal, at 990. Thus,

the police chiefs, and not a private citizen such as Flores, are

part of the class for whose especial benefit HRS § 52D-5 was

enacted.

2. There is no indication of legislative intent to create or deny a private right of action.

The legislative history and text of HRS § 52D-5 do not

indicate any explicit or implicit intent that the statute

provides for a private right of action. A private right of

action is not mentioned anywhere in the legislative history or

text of HRS § 52D-5. See H. Stand. Comm. Rep. No. 703, in 1971

House Journal, at 990; see also H. Stand. Comm. Rep. No. 608, in

1971 House Journal, at 947-48; HRS § 52D-5. Thus, there is no 30 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

indication of an explicit intent to create a private right of

action under HRS § 52D-5.

Furthermore, there is no indication of an implicit

intent to create a private right of action. HRS § 52D-5 and its

legislative history are silent regarding whether the statute was

intended to create a private right of action. See HRS § 52D-5;

see also H. Stand. Comm. Rep. No. 703, in 1971 House Journal, at

990. Although “legislative silence alone is not dispositive,”

strong evidence is necessary to imply a private right of action.

Hungate, 139 Hawaiʻi at 406, 391 P.3d at 13 (citing 1A C.J.S.

Action § 62 (2016)). Flores has not shown strong evidence that

the Legislature intended to create a private right of action in

HRS § 52D-5.26 Therefore, because there does not appear to be an

implicit intent to create a private right of action under HRS

§ 52D-5, we decline to infer a private right of action under

that statute. See Hungate, 139 Hawaii at 406, 391 P.3d at 13

(quoting Touche Ross & Co v. Redington, 442 U.S. 560, 571

(1979)) (“[I]mplying a private right of action on the basis of

[legislative] silence is a hazardous enterprise, at best.”

(alterations in original)).

26 Flores contended that “by prohibiting the unauthorized and unlawful exercise of police powers outside an officer’s jurisdiction, [HRS §] 52D-5 implicitly created a private right of action to seek declaratory relief.” Additionally, Flores argued that “[i]f the legislature in fact intended to preclude judicial review, then that preclusion violates the separation of powers doctrine.” 31 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

3. It is inconsistent with the underlying purposes of the legislative scheme to imply a private right of action.

As discussed above, the purpose of HRS § 52D-5 is to

jurisdiction to another.” H. Stand. Comm. Rep. No. 703, in 1971

House Journal, at 990; see also H. Stand. Comm. Rep. No. 608, in

1971 House Journal, at 947-48; HRS § 52D-5. In other words, the

Chiefs of Police correctly pointed out in their Motion to

Dismiss that “[t]he underlying purpose of [HRS] § 52D-5 is to

ensure cooperative, mutual aid and assistance between the

counties’ chiefs of police to conduct investigations in each

other’s respective jurisdictions.” Implying a private right of

action under HRS § 52D-5 would be inconsistent with the

statute’s legislative scheme because allowing a private

individual to sue police chiefs would interfere with the ability

of police from different jurisdictions to cooperate and provide

continuity to police investigations. Thus, implying a private

right of action would not be consistent with the underlying

purposes of HRS § 52D-5.

Flores filed his complaint seeking declaratory relief

pursuant to HRS § 52D-5. However, the legislative history of

HRS § 52D-5 demonstrates that the statute does not provide

Flores with a private right of action. In turn, the circuit

court properly granted the Chiefs of Police’s Motion to Dismiss 32 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

because Flores was not entitled to declaratory relief under

HRS § 632-1.

B. The ICA correctly determined that mutual aid is permitted.

Although the ICA could have affirmed the circuit

court’s Order Granting Motion to Dismiss because HRS § 52D-5

does not create a private right of action, the ICA correctly

determined that mutual aid between different counties is

permitted. According to Flores, a police officer may only

exercise police powers in another county when both prongs of HRS

§ 52D-5 are satisfied, meaning that (1) the officer is pursuing

an investigation originating in the “sending” jurisdiction and

(2) the chief of police of the “receiving” jurisdiction

consents.

However, nothing in the plain language of HRS § 52D-5

indicates that the statute identifies the only scenario in which

a police officer may exercise police authority in another

jurisdiction. Rather, HRS § 52D-5 describes a specific scenario

in which it is permissible for a chief of police or an

authorized subordinate to exercise the authority of the sending

county in another county. See HRS § 52D-5.

In addition, Flores’s interpretation ignores the

practical need for mutual aid – a necessity that the Legislature

recognized and provided for in other statutes. See HRS § 78-27

33 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

(providing for the temporary inter-governmental assignment of

employees by agreement); HRS § 127A-1227 (vesting county mayors

with authority to “develop mutual aid plans and agreements for

emergency management” between counties for the provision of

necessary services, including police services). Furthermore, as

the IMLA pointed out, mutual aid is an important tool to enable

state agencies “to access additional resources when the need

arises[]” and helps facilitate a timely response to emergencies.

Thus, Flores’s interpretation that HRS § 52D-5 limits all out-

of-county police action and mutual aid is without merit, and the

ICA correctly determined that mutual aid between police officers

of different counties is permitted under Hawaiʻi law.

IV. CONCLUSION

The legislative history of HRS § 52D-5, which was the

basis of Flores’s complaint, demonstrates that the statute does

not provide for a private right of action. Thus, the circuit

court properly dismissed Flores’s complaint. In addition, as

held by the ICA, mutual aid between police departments of

different counties is permitted under Hawaiʻi law.

27 The Legislature described the policy and purpose of Chapter 127A Emergency Management as: “It is the intent of the legislature to provide for and confer comprehensive powers for the purposes stated herein. This chapter shall be liberally construed to effectuate its purposes[.]” HRS § 127A-1(c) (Supp. 2019). 34 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Accordingly, we affirm the ICA’s February 24, 2021

Judgment on Appeal, which affirmed the circuit court’s

November 12, 2019 Order Granting Motion to Dismiss.

Peter S.R. Olson /s/ Mark E. Recktenwald for petitioner E. Kalani Flores /s/ Paula A. Nakayama Robert M. Kohn /s/ Sabrina S. McKenna (Ernest H. Nomura and Nicolette Winter with him /s/ Michael D. Wilson on the briefs) for respondent Arthur Logan in his /s/ Todd W. Eddins capacity as Chief of Police of the City and County of Honolulu

Peter A. Hanano for respondent John Pelletier in his capacity as Chief of Police of Maui County

Lerisa L. Heroldt (Laureen L. Martin with her on the briefs) for respondent Paul Ferreira in his capacity as the Chief of Police of the County of Hawaiʻi

Alan D. Cohn* (Richard F. Nakamura, Steven L. Goto and Jason E. Meade*, with him on the briefs) for amicus curiae International Municipal Lawyers Association, Inc.

Kimberly T. Guidry and Kalikoʻonālani D. Fernandes for amicus curiae State of Hawaiʻi

*admitted pro hac vice