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Electronically Filed
Supreme Court
30052
17-JAN-2012
03:47 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---O0O---
HAWAII STATE TEACHERS ASSOCIATION and UNITED PUBLIC WORKERS,
AFSCME, Local 646, AFL-CIO,
Plaintiffs-Appellants/Appellees/Cross-Appellants,
vs.
NEIL ABERCROMBIE1, Governor, State of Hawai#i; BARBARA A. KRIEG2,
Interim Director, Department of Human Resources Development,
State of Hawai#i; and KALBERT K. YOUNG, Director, Department of
Budget and Finance, State of Hawai#i; Doe Defendants 1-10,
Defendants-Appellees/Appellants/Cross-Appellees.
NO. 30052
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 09-1-1372)
JANUARY 17, 2012
NAKAYAMA, ACTING C.J., AND DUFFY, J.,
CIRCUIT JUDGE AHN IN PLACE OF MOON, C.J., RECUSED AND RETIRED,
AND CIRCUIT JUDGE LEE, IN PLACE OF RECKTENWALD J., RECUSED,
WITH ACOBA, J., DISSENTING SEPARATELY
1
During the pendency of this appeal, Neil Abercrombie, Governor of
the State of Hawai#i, succeeded Linda Lingle. Thus, pursuant to Hawai#i Rules
of Appellate Procedure (HRAP) Rule 43(c), Abercrombie has been substituted
automatically for Lingle in this case.
2
Barbara A. Krieg, Interim Director of the Department of Human
Resources Development, State of Hawai#i and Kalbert K. Young, Director,
Department of Budget and Finance, State of Hawai#i have been substituted as
parties to this appeal pursuant to HRAP 43(c).
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OPINION OF THE COURT BY NAKAYAMA, J.
In this case, we apply Hawaii Government Employees
Ass’n, AFSCME Local 152, AFL-CIO v. Lingle (hereinafter “HGEA”),
124 Hawai#i 197, 239 P.3d 1 (2010), and hold that the circuit
court erred by deciding statutory issues over which the Hawai#i
Labor Relations Board (“HLRB”) has exclusive original
jurisdiction.
I. BACKGROUND
Briefly stated, in order to reduce labor costs, then-
Governor Linda Lingle (“Lingle”) announced her decision to
furlough3 all state employees for three days per month and to
restrict spending in the Department of Education (“DOE”) and
University of Hawai#i (“University”) in an equal amount. She
later filed executive order 09-02, which unilaterally imposed the
three-day-per-month furloughs and reduced the DOE’s and the
University’s funding accordingly. In response to executive order
09-02, Hawai#i State Teachers Association and United Public
Workers, AFSCME, Local 646, AFL-CIO (collectively, “plaintiffs”)
brought the instant action, alleging that the furlough plan
violated: (1) the right to organize for the purpose of
collective bargaining under article XIII, section 2 of the
3
Executive order 09-02 defined the term “furlough” as “the
placement of an employee temporarily and involuntarily in a non-pay and non-
duty status by the Employer because of lack of work or funds, or other non-
disciplinary reasons.”
2
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Hawai#i Constitution;4 (2) the employees’ right to accrued
retirement benefits under article XVI, section 2 of the Hawai#i
Constitution;5 and (3) separation of powers under article III,
section 1 of the Hawai#i Constitution.6 The plaintiffs moved for
a temporary restraining order, which the Circuit Court of the
First Circuit (“circuit court”) granted in part on August 28,
2009. Lingle asserted in part that the HLRB had exclusive
jurisdiction over the plaintiffs’ claims under chapter 89 of the
Hawai#i Revised Statutes (HRS). The circuit court rejected this
argument. The circuit court issued its First Amended Findings of
Fact and Conclusions of Law on August 28, 2009, which made the
following relevant determinations: (1) the plaintiffs were
likely to succeed on their article XIII, section 2 claim because
Lingle’s furlough order concerned a “core subject of collective
bargaining”; (2) under the unilateral change doctrine, “the
employer cannot implement unilateral changes regarding matters
that are mandatory subjects of bargaining . . .”; (3) the HLRB
4
Article XIII, section 2 of the Hawai#i Constitution provides that
“[p]ersons in public employment shall have the right to organize for the
purpose of collective bargaining as provided by law.”
5
Article XVI, section 2 of the Hawai#i Constitution provides that
“[m]embership in any employees’ retirement system of the State or any
political subdivision thereof shall be a contractual relationship, the accrued
benefits of which shall not be diminished or impaired.”
6
Article III, section 1 of the Hawai#i Constitution provides that
the “legislative power of the State shall be vested in a legislature, which
shall consist of two houses, a senate and a house of representatives. Such
power shall extend to all rightful subjects of legislation not inconsistent
with this constitution or the Constitution of the United States.”
3
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did not have exclusive jurisdiction over the plaintiff’s claims;
(4) United Public Workers, AFSCME, Local 646, AFL-CIO v.
Hanneman, 106 Hawai#i 359, 105 P.3d 236 (2005), is inapposite;
and (5) the management rights enumerated in HRS § 89-9(d) (Supp.
2008) did not allow Lingle’s unilateral imposition of the
furloughs. The circuit court filed its final judgment on
September 10, 2009. The circuit court subsequently filed an
amended judgment on September 24, 2009.
The plaintiffs appealed on September 10, 2009,
asserting that the circuit court erred by: (1) determining “that
HRS § 37-37(a) [wa]s a constitutional delegation of budget-
reduction authority to the Governor”; and (2) “dismissing Count
III of the First Amended Complaint sua sponte, without providing
[the plaintiffs] with an opportunity to respond.”7 Lingle cross-
appealed, asserting in part that the circuit court lacked
jurisdiction to determine whether the furlough plan complied with
HRS § 89-9(d).
The plaintiffs applied for transfer from the
Intermediate Court of Appeals (“ICA”) to this court of their
appeal and Lingle’s cross-appeal. On December 1, 2009, this
court entered an order granting the plaintiffs’ application for
transfer pursuant to HRS § 602-58(a)(1) (Supp. 2008).
7
In light of our conclusion that the circuit court lacked subject
matter jurisdiction, it is unnecessary to address these issues.
4
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II. STANDARDS OF REVIEW
A. Subject Matter Jurisdiction
“Whether a court possesses subject matter jurisdiction
is a question of law reviewable de novo.” HGEA, 124 Hawai#i at
201, 239 P.3d at 5 (internal quotation marks omitted) (quoting
Hawaii Mgmt. Alliance Ass’n v. Ins. Comm’r, 106 Hawai#i 21, 27,
100 P.3d 952, 957 (2004)).
B. Statutory Interpretation
Questions of statutory interpretation are questions of
law reviewable de novo. Id. This court follows the following
principles when interpreting statutes:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation 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. Fourth, when there
is doubt, doubleness of meaning, or indistinctiveness or
uncertainty of an expression used in a statute, an ambiguity
exists. And fifth, 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.
Id. at 202, 239 P.3d at 6.
III. DISCUSSION
The circuit court determined that it had subject matter
jurisdiction over the dispute. The circuit court further
determined that the management rights enumerated in HRS § 89-9(d)
did not allow Lingle to unilaterally furlough employees.
5
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Lingle asserts that the circuit court erred because it
did not have subject matter jurisdiction over the dispute. In
response, the plaintiffs assert that: (1) the doctrines of
exhaustion of administrative remedies and primary jurisdiction
are matters of policy; and (2) the unique circumstances of this
case weigh against requiring the case to proceed before the HLRB.
In HGEA, 124 Hawai#i at 200, 239 P.3d at 4, this court
held that the HLRB had “exclusive original jurisdiction” over the
HRS chapter 89 issues raised by the plaintiffs and that “the
circuit court should have deferred ruling on the constitutional
issues until after the HLRB had the opportunity to resolve the
statutory questions.” In HGEA, the plaintiffs asserted in their
complaint that “‘[t]he Governor does not have the implied right
to unilaterally impose furloughs pursuant to HRS § 89-9(d)’
thereby ‘circumvent[ing] the collective bargaining process’
because ‘[f]urloughs reduce employee hours and wages and affect
terms and conditions of employment and, therefore, are a
mandatory subject of collective bargaining negotiation protected
by Article XIII, Section 2 of the Hawaii State Constitution and
as prescribed by HRS § 89-9(a).’” Id. at 205, 239 P.3d at 9
(emphases added). The plaintiffs in this case did not make
similar allegations with respect to their article XIII, section 2
6
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claim.8 Because the plaintiffs in the instant case did not raise
statutory issues in their complaint, this case presents the
question of whether the reasoning in HGEA applies when the
plaintiffs raise constitutional issues while omitting references
to statutory issues the HLRB has exclusive jurisdiction over. We
hold that it does, and therefore vacate the circuit court’s
judgment and remand to the circuit court.
In HGEA, HGEA based its request for relief on both
statutory and constitutional grounds. HGEA, 124 Hawai#i at 200,
239 P.3d at 4. The circuit court granted a preliminary
injunction partly on the grounds that: (1) the HLRB did not have
exclusive jurisdiction over the dispute; (2) Lingle’s decision to
unilaterally furlough employees violated article XIII, section 2
of the Hawai#i Constitution; (3) under NLRB v. Katz, 369 U.S. 736
(1962), Lingle could not impose furloughs by unilateral action;
(4) United Public Workers, AFSCME, Local 646, AFL-CIO v.
Hanneman, 106 Hawai#i 359, 105 P.3d 236 (2005), is “inapposite”;
and (5) Lingle’s reliance on HRS § 89-9(d) to justify the
furloughs was not persuasive. HGEA, 124 Hawai#i at 201, 239 P.3d
at 5. This court held that HRS § 89-14 (1993) provided the HLRB
8
The plaintiffs did assert that the “obligation to pay wages and
salaries to bargaining units 1, 5 and 10, on and after June 1, 2009 and to
maintain hours of work and other terms and conditions of employment are valid
obligations and commitments previously incurred: . . . [b]y statute under
chapter 89 which prohibits any unilateral changes in wages, hours of work, and
other terms and conditions of employment absent good faith bargaining leading
to impasse (which has yet to occur).” However, this assertion occurred in the
context of their claim regarding separation of powers.
7
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with exclusive original jurisdiction over the dispute.
HRS § 89-14 provides that “[a]ny controversy concerning
prohibited practices may be submitted to the board in the same
manner and with the same effect as provided in section 377-9;
provided that the board shall have exclusive original
jurisdiction over such a controversy . . . .” (Emphasis added.)
This court observed that HRS § 89-13(a) defines the term
prohibited practice as follows:
It shall be a prohibited practice for a public
employer or its designated representative wilfully to:
. . . .
(5) Refuse to bargain collectively in good faith with
the exclusive representative as required in section 89-9;
(6) Refuse to participate in good faith in the
mediation and arbitration procedures set forth in section
89-11;
(7) Refuse or fail to comply with any provision of
this chapter;
(8) Violate the terms of a collective bargaining
agreement.
HGEA, 124 Hawai#i at 204, 239 P.3d at 8 (quoting HRS § 89-13(a)
(Supp. 2003)).
This court held that “[v]iewing the assertions made by
HGEA in its first amended complaint in light of HRS § 89-13(a),
it appears that HGEA alleges that Lingle essentially engaged in a
‘prohibited practice’ when she unilaterally imposed furloughs.”
Id. at 205, 239 P.3d at 9. Therefore, this court held that “the
HLRB has exclusive original jurisdiction over the statutory
claims raised in HGEA’s complaint.” Id. at 206, 239 P.3d at 10.
8
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Unlike the plaintiffs in HGEA, the plaintiffs here have
not referred to HRS chapter 89 in their complaint when arguing
that the imposition of furloughs violated article XIII, section 2
of the Hawai#i Constitution. Nevertheless, HGEA applies. This
is apparent from the text of HRS § 89-14 and the policies
enumerated in HGEA.
The plain language of HRS § 89-14 supports concluding
that the instant case is a “controversy concerning prohibited
practices” that must first be submitted to the HLRB. Although
the term “controversy concerning prohibited practices” is not
defined by chapter 89, this court “may resort to legal or other
well accepted dictionaries as one way to determine the ordinary
meaning of certain terms not statutorily defined.” Nuuanu Valley
Ass’n v. City & Cnty. of Honolulu, 119 Hawai#i 90, 98, 194 P.3d
531, 539 (2008) (internal quotation marks omitted) (quoting
Leslie v. Bd. of Appeals, 109 Hawai#i 384, 393, 126 P.3d 1071,
1080 (2006)). The term “concerning” is defined as “relating to.”
Webster’s Unabridged Dictionary 423 (2d ed. 2001). The term
“prohibited practice” is defined in HRS § 89-13 in part as
“[r]efus[ing] to bargain collectively in good faith with the
exclusive representative as required in section 89-9[,]”
“[r]efus[ing] to participate in good faith in the mediation and
arbitration procedures set forth in section 89-11[,]” refusing to
comply with any provision of chapter 89, and “[v]iolat[ing] the
9
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terms of a collective bargaining agreement.” HRS § 89-13(a)(5)-
(8). The plaintiffs’ first amended complaint asserts that Lingle
violated article XIII, section 2 of the Hawai#i Constitution by
imposing a unilateral reduction in wages, prohibiting
negotiations regarding the furloughs, and by unilaterally
suspending the “collective bargaining process as provided by law”
for two years. The plaintiffs’ complaint states claims relating
to “prohibited practices” because it ultimately challenges
Lingle’s ability to unilaterally impose furloughs without
collectively bargaining. See HGEA, 124 Hawai#i at 205, 239 P.3d
at 9 (holding that “HGEA alleges that Lingle essentially engaged
in a ‘prohibited practice’ when she unilaterally imposed
furloughs[,]” because HGEA asserted that “[t]he Governor does not
have the implied right to unilaterally impose furloughs pursuant
to HRS § 89-9(d)” thereby “circumvent[ing] the collective
bargaining process . . .”). Deleting references to chapter 89
does not change the fact that the dispute ultimately relates to a
prohibited practice. Therefore, the plain language of HRS § 89-
14 indicates that the HLRB has exclusive original jurisdiction
over the plaintiffs’ claims.9
9
For the same reason, the plaintiffs’ argument that “the HLRB’s
original jurisdiction is limited to resolving controversies concerning
prohibited practices” and that a circuit court “has jurisdiction to interpret
Chapter 89 in the first instance when statutory interpretation is necessary to
resolve a claim within the Circuit Court’s jurisdiction” is unpersuasive. The
plaintiffs’ argument is correct in controversies that do not concern
prohibited practices; however, the instant case is a controversy concerning a
prohibited practice over which the HLRB has exclusive original jurisdiction.
10
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This analysis is bolstered by this court’s opinion in
HGEA, where we rejected the plaintiffs’ attempt to characterize
their statutory claim as a constitutional claim. HGEA, 124
Hawai#i at 208, 239 P.3d at 12. This court held that the
legislative purpose of “having the administrative agency with
expertise in these matters decide them in the first instance” is
“frustrated if the HLRB’s jurisdiction can be defeated by
characterizing issues that fall within the scope of HRS Chapter
89 as constitutional claims and then addressing them directly to
the circuit court.” Id. Likewise, even though HSTA has not
brought a chapter 89 claim against Lingle, the legislative
purpose of providing the HLRB with exclusive original
jurisdiction over chapter 89 complaints is frustrated if
plaintiffs can recast their statutory claims as constitutional
claims and proceed directly to circuit court. Thus, the circuit
court erred by failing allow the HLRB to decide the issues
relating to chapter 89 before deciding the constitutional issues.
The plaintiffs also assert that the case did not need
to proceed before the HLRB because this case involved a “fiscal
crisis” and an “urgent need for resolution” of an issue
“affecting all State employees.” However, that argument was
rejected in HGEA. HGEA, 124 Hawai#i at 209, 239 P.3d at 13
(“HGEA does not cite to any authority that supports its position
that, essentially, ‘exigent circumstances’ justified the circuit
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court in proceeding directly to the constitutional issues without
first allowing the HLRB to rule on the statutory questions.”).10
Therefore, the HLRB had exclusive original jurisdiction over the
dispute.
IV. CONCLUSION
For the foregoing reasons, we vacate the circuit
court’s September 24, 2009 amended judgment and remand for
further proceedings consistent with this opinion.
On the briefs:
Deirdre Marie-Iha, /s/ Paula A. Nakayama
Deputy Solicitor General,
Department of the Attorney /s/ James E. Duffy, Jr.
General (Mark J. Bennett,
Attorney General of Hawai#i, /s/ Karen S. S. Ahn
Lisa M. Ginoza, First Deputy
Attorney General of Hawaii, /s/ Randal K. O. Lee
with her on the briefs) for
Defendants-Appellees/
Appellants/Cross-Appellees
Rebecca L. Covert,
(Herbert R. Takahashi and
Danny J. Vasconcellos of
Takahashi Vasconcellos &
Covert and Scott A. Kronland,
pro hac vice, of Altshuler
Berzon LLP with her on the
briefs) for Plaintiffs-
Appellants/Appellees/
Cross-Appellants
10
Similarly, a number of the plaintiffs’ other arguments were
rejected in HGEA. For instance, the plaintiffs assert that: (1) exhaustion
of administrative remedies does not apply because proceedings in the circuit
court would have been necessary to obtain a temporary restraining order, see
HRS § 377-9(d) (1993); and (2) the HLRB does not have jurisdiction to resolve
the plaintiffs’ constitutional claims. In HGEA, this court rejected those
arguments. See HGEA, 124 Hawai#i at 208-09, 239 P.3d at 12-13.
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