City and County of Honolulu v. Ariyoshi

DISSENTING OPINION OF

LUM, C.J., WITH WHOM NAKAMURA, J„ JOINS

I cannot come to the same conclusions reached by the majority. I am compelled to voice my dissent.

I.

I agree with the majority that Ross has standing to challenge the constitutionality of Section 34 and 34A of Act 129, Session Laws of Hawaii 1982.

Because the majority chose to uphold the validity of these sections, the majority did not reach the issue of the constitutionality of section 35. Although I also conclude that the constitutionality of section 35 need not be reached, I do so for another reason.

Section 35 requires the counties to reimburse the State for grants-in-aid given to them in the event that sections 34 and 34A were held to be unconstitutional. I am unable to see how Ross is tangibly injured or personally affected by the State action of section 35. Life of the Land v. Land Use Commission, 63 Haw. 166, 623 P.2d 431 (1981). If a statute contains separable provisions, a person may challenge only those provisions which operate to injure him, and he may not challenge those provisions that cause him no harm. Bell v. Hongisto, 501 F.2d 346, 355, 356 (9th Cir. 1974). I therefore conclude that Ross has no standing to challenge section 35 and given *423the additional circumstance that the counties did not challenge the constitutionality of section 35, I likewise conclude that its constitutionality need not be determined.

II.

What is at stake in the outcome of the constitutionality of sections 34 and 34A is “home rule” for the counties. While the general political concept of “home rule” is amorphous, article VII (now article VIII), sections 2 and 6 of the Hawaii State Constitution is an attempt by our founding fathers to guide us in determining the concept of “home rule” for the counties.

But, before discussing these, provisions let me say first of all that in my opinion, the majority misinterprets HGEA v. County of Maui, 59 Haw. 65, 576 P.2d 1029 (1978). HGEA dealt exclusively with matters dealing with civil "service personnel and compensation, which led the court to find statewide concern. The HGEA court stated specifically:

From an examination of the framers’ Standing Committee Report No. 53 (majority), we think it is clear that they intended the final authority on all civil service and compensation matters to remain with the legislature. (Emphasis added).

Id. at 86, 576 P.2d at 1041.

In contrast to HGEA this case involves salaries for positions of key officers and employees of the counties. All of these positions are exempt from civil service laws and regulations. I cannot conclude as the majority does that the action of the legislature in “freezing” or regulating such salaries constituted “civil service and compensation matters” or for that matter, constituted a regulation within an “area of personnel.” To do so, I think, is stretching HGEA beyond its boundaries.

III.

Under sections 2 and 6, the structure and organization of county governments are not free from legislative control. However, under the constitutional scheme, the legislature can exercise such control only through the enactment of general laws allocating and reallocating powers and functions of the county governments or *424through the enactment of laws which are of statewide concern.

The constitutional scheme must be strictly adhered to, otherwise home rule is meaningless to the counties.

I submit that Act 129 is neither a general law allocating or reallocating powers and functions of the county governments nor a law of statewide concern; it is actually a statutory law inferior to the charter provisions providing for the structure and organization of the county governments.

In my opinion, Act 129 is an unconstitutional infringement by the legislature upon the structure and organization of the county governments. The freezing of salaries for key officers and personnel strikes at the heart of the structure and organization of the county governments. The lack of qualified, responsible and competent officers to fill important government positions causes an erosion of governmental structure and organization.

I cannot conclude that Act 129 is an allocation or reallocation of power because the county governments continue to retain power to set these salaries.

The fact that the legislature found that salaries of these key officers to be higher than their State counterparts, and found statewide concern in this area does not make the legislative findings a statewide concern of constitutional dimension. Bishop v. City of San Jose, 1 Cal. 3rd 56, 81 Cal. Rptr. 465, 460 P.2d 137 (1969). There is nothing in the law that requires salaries of exempt officials of one county bear a certain relationship to salaries of the State government or to other county governments.

Each county has its own complexity, size and peculiarity. Each should be allowed to dictate salaries for exempt positions without legislative interference; the final authority on the reasonableness of these salaries should rest with the people of each county and not with the legislature. Therefore, I cannot conclude that Act 129 is of statewide concern.

I see sections 34 and 34A as a curtailment of home rule for the counties. I would sustain the trial court.

*425SEPARATE OPINION OF

NAKAMURA, J.

I wholeheartedly agree with the Chief Justice’s reasoning and conclusion that sections 34 and 34A of Act 129 breach the principle of “home rule” for the counties which has been written into the Constitution of the State of Hawaii. But I believe section 35 is afflicted with a similar infirmity and Arthur E. Ross has standing to challenge its constitutionality.

Section 35, in my opinion, represents a transparent attempt to exercise by indirection a power withheld from the legislature by the framers of the constitution and the people of Hawaii. I would also declare it unconstitutional.