NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 08-FEB-2024 07:46 AM Dkt. 66 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI ORGANIZATION OF POLICE OFFICERS, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU, Defendant–Appellee, and STATE OF HAWAIʻI, Intervenor/Defendant-Appellee, and HONOLULU CIVIL BEAT, INC., Intervenor/Defendant-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Plaintiff-Appellant State of Hawai‘i Organization of
Police Officers (SHOPO) appeals from the Circuit Court of the
First Circuit's September 30, 2021 Final Judgment and April 14,
2021 order denying SHOPO's motion for preliminary injunction. 1
On appeal, SHOPO raises six points of error, contending Act 47
1 The Honorable Dean E. Ochiai presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(2020)'s amendments violate its members' right to: (1) privacy;
(2) organize; (3) procedural due process; (4) substantive due
process; (5) equal protection; and (6) prohibition against
impairment of contracts.
Defendant-Appellee City and County of Honolulu,
Intervenor/Defendant-Appellee State of Hawai‘i, and
Intervenor/Defendant-Appellee Honolulu Civil Beat filed
answering briefs countering SHOPO's contentions, and the
American Civil Liberties Union of Hawai‘i Foundation submitted an
amicus brief supporting the defendants.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve the
points of error as discussed below, and affirm.
(1) In its first point of error, SHOPO contends the
circuit court "erred in finding that Act 47's amendments did not
violate a county police officer's right to privacy by mandating
disclosure of disciplinary records before the highest
nonjudicial grievance adjustment procedure timely invoked by the
employee or the employee's representative has concluded."
SHOPO argues that "officers have a constitutional
right to privacy in their employment records in general,
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
including pending discipline matters." However, the Hawai‘i
Supreme Court has ruled "information regarding a police
officer's misconduct in the course of his or her duties as a
police officer is not within the protection of Hawai‘i's
constitutional right to privacy . . . ." State of Hawai‘i Org.
of Police Officers v. City & Cnty. of Honolulu, 149 Hawai‘i 492,
511, 494 P.3d 1225, 1244 (2021) (explaining that this holding
"remains good law") (quoting State of Hawai‘i Org. of Police
Officers v. Soc'y of Pro. Journalists-Univ. of Hawai‘i Chapter
(SHOPO v. SPJ), 83 Hawai‘i 378, 397, 927 P.3d 386, 405 (1996),
superseded by statute, 1995 Haw. Sess. Laws Act 242 § 1 at 641-
42, as recognized in Peer News LLC v. City & Cnty. of Honolulu,
138 Hawai‘i 53, 63-65, 376 P.3d 1, 11-13 (2016)).
SHOPO also argues Act 47's amendments created an
"internal inconsistency" between Hawai‘i Revised Statutes (HRS)
§§ 92F-14(b)(4)(B) (Supp. 2021) and 52D-3.5 (Supp. 2021). Based
on the amendment to HRS § 52D-3.5, each police department must
report to the legislature "the identity of the police officer
upon the police officer's suspension or discharge." Under HRS
§ 92F-14(a) (2012) and (b)(4)(B), a government agency must
disclose the name of an employee whose misconduct resulted in
suspension or discharge when, among other things, "the highest
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
nonjudicial grievance adjustment procedure timely invoked by the
employee or the employee's representative has concluded . . ."
or "public interest in disclosure outweighs the privacy interest
of the individual." Because both statutes detail the
circumstances under which the officer's name must be provided,
and neither statute provides a right to nondisclosure, there is
no "internal inconsistency." See SHOPO v. City & Cnty. of
Honolulu, 149 Hawai‘i at 497, 507, 494 P.3d at 1230, 1240
(explaining that HRS chapter 92F, the Uniform Information
Practices Act (UIPA), "simply provides no right of
nondisclosure").
(2) Next, in its second, third, fourth, and sixth
points of error, SHOPO contends Act 47's amendments violated its
members' right to: organize for the purpose of collective
bargaining; procedural due process; substantive due process; and
prohibition against impairment of contract. For these points,
SHOPO relies on its collective bargaining agreement (or CBA)
asserting that a conflict exists between the requirement to
disclose the identity of the police officer under HRS § 52D-3.5
and the grievance procedures under its collective bargaining
agreement.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Curiously, in challenging UIPA disclosures in SHOPO v.
City & Cnty. of Honolulu, SHOPO proffered that "the disclosures
required by HRS § 52D-3.5 . . . would suffice to meet Civil
Beat's request without violating the CBA." 149 Hawai‘i at 520,
494 P.3d at 1253 (emphasis added). Nonetheless, assuming
arguendo a conflict exists between HRS § 52D-3.5 and the
collective bargaining agreement, the county police departments
cannot bargain away their duties under HRS § 52D-3.5. See id.
(explaining that "an agency may not collectively bargain away
its duties under UIPA – compliance with the statute is 'non-
negotiable'") (quoting SHOPO v. SPJ, 83 Hawai‘i at 404-05, 927
P.2d at 412-13). HRS § 52D-3.5 requires each county police
department to report certain information to the legislature,
such as disclosing the officer's identity upon suspension or
discharge. And the police departments must comply. See 149
Hawai‘i at 520, 494 P.3d at 1253 (explaining that an "agency must
comply with UIPA, and if the CBA would prevent that, it is
unenforceable") (citing SHOPO v. SPJ, 83 Hawai‘i at 404-05, 927
P.2d at 412-13).
(3) Finally, in its fifth point of error, SHOPO
contends the circuit court erred by finding "Act 47's amendments
did not violate the equal protection rights of SHOPO and its
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 08-FEB-2024 07:46 AM Dkt. 66 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI ORGANIZATION OF POLICE OFFICERS, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU, Defendant–Appellee, and STATE OF HAWAIʻI, Intervenor/Defendant-Appellee, and HONOLULU CIVIL BEAT, INC., Intervenor/Defendant-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Plaintiff-Appellant State of Hawai‘i Organization of
Police Officers (SHOPO) appeals from the Circuit Court of the
First Circuit's September 30, 2021 Final Judgment and April 14,
2021 order denying SHOPO's motion for preliminary injunction. 1
On appeal, SHOPO raises six points of error, contending Act 47
1 The Honorable Dean E. Ochiai presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(2020)'s amendments violate its members' right to: (1) privacy;
(2) organize; (3) procedural due process; (4) substantive due
process; (5) equal protection; and (6) prohibition against
impairment of contracts.
Defendant-Appellee City and County of Honolulu,
Intervenor/Defendant-Appellee State of Hawai‘i, and
Intervenor/Defendant-Appellee Honolulu Civil Beat filed
answering briefs countering SHOPO's contentions, and the
American Civil Liberties Union of Hawai‘i Foundation submitted an
amicus brief supporting the defendants.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve the
points of error as discussed below, and affirm.
(1) In its first point of error, SHOPO contends the
circuit court "erred in finding that Act 47's amendments did not
violate a county police officer's right to privacy by mandating
disclosure of disciplinary records before the highest
nonjudicial grievance adjustment procedure timely invoked by the
employee or the employee's representative has concluded."
SHOPO argues that "officers have a constitutional
right to privacy in their employment records in general,
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
including pending discipline matters." However, the Hawai‘i
Supreme Court has ruled "information regarding a police
officer's misconduct in the course of his or her duties as a
police officer is not within the protection of Hawai‘i's
constitutional right to privacy . . . ." State of Hawai‘i Org.
of Police Officers v. City & Cnty. of Honolulu, 149 Hawai‘i 492,
511, 494 P.3d 1225, 1244 (2021) (explaining that this holding
"remains good law") (quoting State of Hawai‘i Org. of Police
Officers v. Soc'y of Pro. Journalists-Univ. of Hawai‘i Chapter
(SHOPO v. SPJ), 83 Hawai‘i 378, 397, 927 P.3d 386, 405 (1996),
superseded by statute, 1995 Haw. Sess. Laws Act 242 § 1 at 641-
42, as recognized in Peer News LLC v. City & Cnty. of Honolulu,
138 Hawai‘i 53, 63-65, 376 P.3d 1, 11-13 (2016)).
SHOPO also argues Act 47's amendments created an
"internal inconsistency" between Hawai‘i Revised Statutes (HRS)
§§ 92F-14(b)(4)(B) (Supp. 2021) and 52D-3.5 (Supp. 2021). Based
on the amendment to HRS § 52D-3.5, each police department must
report to the legislature "the identity of the police officer
upon the police officer's suspension or discharge." Under HRS
§ 92F-14(a) (2012) and (b)(4)(B), a government agency must
disclose the name of an employee whose misconduct resulted in
suspension or discharge when, among other things, "the highest
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
nonjudicial grievance adjustment procedure timely invoked by the
employee or the employee's representative has concluded . . ."
or "public interest in disclosure outweighs the privacy interest
of the individual." Because both statutes detail the
circumstances under which the officer's name must be provided,
and neither statute provides a right to nondisclosure, there is
no "internal inconsistency." See SHOPO v. City & Cnty. of
Honolulu, 149 Hawai‘i at 497, 507, 494 P.3d at 1230, 1240
(explaining that HRS chapter 92F, the Uniform Information
Practices Act (UIPA), "simply provides no right of
nondisclosure").
(2) Next, in its second, third, fourth, and sixth
points of error, SHOPO contends Act 47's amendments violated its
members' right to: organize for the purpose of collective
bargaining; procedural due process; substantive due process; and
prohibition against impairment of contract. For these points,
SHOPO relies on its collective bargaining agreement (or CBA)
asserting that a conflict exists between the requirement to
disclose the identity of the police officer under HRS § 52D-3.5
and the grievance procedures under its collective bargaining
agreement.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Curiously, in challenging UIPA disclosures in SHOPO v.
City & Cnty. of Honolulu, SHOPO proffered that "the disclosures
required by HRS § 52D-3.5 . . . would suffice to meet Civil
Beat's request without violating the CBA." 149 Hawai‘i at 520,
494 P.3d at 1253 (emphasis added). Nonetheless, assuming
arguendo a conflict exists between HRS § 52D-3.5 and the
collective bargaining agreement, the county police departments
cannot bargain away their duties under HRS § 52D-3.5. See id.
(explaining that "an agency may not collectively bargain away
its duties under UIPA – compliance with the statute is 'non-
negotiable'") (quoting SHOPO v. SPJ, 83 Hawai‘i at 404-05, 927
P.2d at 412-13). HRS § 52D-3.5 requires each county police
department to report certain information to the legislature,
such as disclosing the officer's identity upon suspension or
discharge. And the police departments must comply. See 149
Hawai‘i at 520, 494 P.3d at 1253 (explaining that an "agency must
comply with UIPA, and if the CBA would prevent that, it is
unenforceable") (citing SHOPO v. SPJ, 83 Hawai‘i at 404-05, 927
P.2d at 412-13).
(3) Finally, in its fifth point of error, SHOPO
contends the circuit court erred by finding "Act 47's amendments
did not violate the equal protection rights of SHOPO and its
members . . . ." SHOPO argues "Act 47 deprives county police
officers of the same due process rights enjoyed by other public
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
employees" and treating "county police officers differently than
other law enforcement officers with the same 'police powers'
does not have a fair and substantial relation to the objective
of Act 4 [sic] nor is it supported by a rational basis."
(Emphasis omitted.)
Contrary to SHOPO's contention, the legislature
provided a rational basis for disclosing the identity of a
police officer upon suspension or discharge. Nagle v. Bd. of
Educ., 63 Haw. 389, 393, 629 P.2d 109, 112 (1981) (explaining
"[w]here 'suspect' classifications or fundamental rights are not
at issue, this court has traditionally employed the rational
basis test"). The legislature explained the purpose of Act 47
was to "enhance the public's trust in law enforcement," and
found "public trust in law enforcement is critical to ensuring
justice" and "the difficult and often dangerous job of law
enforcement is safer, easier, and more effectively executed when
citizens trust those empowered to serve and protect them." 2020
Haw. Sess. Laws Act 47, § 1 at 364. Thus, "requiring disclosure
of the identities of suspended or discharged county police
officers to the Legislature will improve oversight of police
departments in cases of severe misconduct." Conf. Comm. Rep.
No. 3-20, in 2020 House Journal, at 909-10, 2020 Senate Journal,
at 577-78 (2020).
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Based on the foregoing, we affirm the circuit court's
September 30, 2021 Final Judgment and April 14, 2021 order
denying SHOPO's motion for preliminary injunction.
DATED: Honolulu, Hawai‘i, February 8, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Keani Alapa, Vladimir Devens, /s/ Karen T. Nakasone for Plaintiff-Appellant. Associate Judge
Duane W.H. Pang, /s/ Sonja M.P. McCullen Haley E. Chee, Associate Judge Deputies Corporation Counsel, City and County of Honolulu, for Defendant-Appellee.
Kalikoʻonālani D. Fernandes, Solicitor General, Department of the Attorney General, for Intervenor/Defendant- Appellee State of Hawaiʻi.
Robert Brian Black, Stephanie Frisinger, for Intervenor/Defendant- Appellee Honolulu Civil Beat Inc.
Jongwook Kim, for amicus curiae American Civil Liberties Union of Hawaiʻi Foundation.