McDermott v. Haruki

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-JAN-2024
07:51 AM
Dkt. 73 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

BOB McDERMOTT and UTUFAASILI McDERMOTT, parents of
S. and B., minor children, Plaintiffs-Appellants,
v.
WARREN HARUKI, in his capacity as CHAIRMAN OF THE
BOARD OF EDUCATION, STATE OF HAWAI#I; KEITH HAYASHI,
in his capacity as the SUPERINTENDENT OF THE DEPARTMENT
OF EDUCATION, STATE OF HAWAI#I; GOVERNOR JOSH GREEN, M.D.,
Defendants-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE GOVERNMENTAL
ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 16-1-1908-10 (ECN))

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)

Plaintiffs-Appellants Bob McDermott and Utufaasili

McDermott (the McDermotts) appeal from the Final Judgment Re:

Order Granting Defendants' Motion to Dismiss Complaint

(Judgment), entered pursuant to the Order Granting Defendants'

Motion to Dismiss Complaint (Order of Dismissal), both entered on

January 18, 2017, in favor of Defendants-Appellees Warren Haruki,

in his capacity as Chairperson of the Board of Education, State

of Hawai#i (BOE), Keith Hayashi, in his capacity as

Superintendent of the Department of Education, State of Hawai#i
(DOE), and Governor Josh Green, M.D. (Governor Green)

(collectively the State),1 in the Circuit Court of the First

Circuit (Circuit Court).2

The McDermotts raise six points of error on appeal,

contending that the Circuit Court erred in dismissing their

Complaint because the court: (1) erred in concluding that the

complaint failed to allege a violation of a constitutionally

protected rights; (2) erred in concluding that the Complaint

sought remedies that violate the separation of powers doctrine;

(3) erred in applying the "rational basis" test, rather than the

"heightened judicial scrutiny" test; (4) erred when it did not

allow the McDermotts to proceed with their claims against the

State for alleged violations of state health laws and

regulations, DOE requirements for school construction costs under

Hawaii Revised Statutes (HRS) § 302A-1607(a) (1) (Supp. 2016),

equitable expenditures, etc.; (5) erred when it did not allow the

McDermotts to proceed with their claims against the State for

failure to address the inadequate facilities at Campbell High

School, in violation of HRS § 302A-1312 (Supp. 2016); and (6)

erred when it did not allow the McDermotts to proceed with their

claim against the State for violating its responsibility to

provide school lunches under HRS § 302A-404 (2007).

1
The Complaint filed on October 12, 2016, originally named Lance
Mizumoto in his capacity as the Chairman of the BOE, State of Hawai #i, Kathryn
S. Matayoshi, in her capacity as the Superintendent of the DOE, State of
Hawai#i, and Governor David Y. Ige as parties to the instant case. As
Mizumoto, Matayoshi, and Ige no longer hold their respective public offices,
their successors, Warren Haruki, Keith Hayashi, and Governor Green, are
automatically substituted as parties in the instant appeal pursuant to Hawai #i
Rules of Appellate Procedure (HRAP) Rule 43(c)(1).
2
The Honorable Edwin C. Nacino presided.

2
Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve the McDermotts' points of error as follows:3

(1 & 3) The McDermotts argue, inter alia, that the

Hawai#i State Constitution guarantees a fundamental right to

education, and thus any action by the State that infringes upon

such right requires strict scrutiny by a reviewing court.4 The

McDermotts rely on article X, sections 15 and 36 of the Hawai#i

3
It appears that the McDermotts no longer have children attending
Campbell High School. However, upon review, it further appears that even if
the case were moot as to the McDermotts, one or more exceptions to the
mootness doctrine would apply here. See generally Hamilton ex rel. Lethem v.
Lethem, 119 Hawai#i 1, 193 P.3d 839 (2008).
4
As conceded by the McDermotts in their opening brief, the right to
an education is not protected by the United States Constitution. See San
Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).
5
Article X, § 1 of the Hawai#i Constitution provides:

Section 1. The State shall provide for the establishment,
support and control of a statewide system of public schools free
from sectarian control, a state university, public libraries and
such other educational institutions as may be deemed desirable,
including physical facilities therefor. There shall be no
discrimination in public educational institutions because of race,
religion, sex or ancestry; nor shall public funds be appropriated
for the support or benefit of any sectarian or nonsectarian
private educational institution, except that proceeds of special
purpose revenue bonds authorized or issued under section 12 of
Article VII may be appropriated to finance or assist:

1. Not-for-profit corporations that provide early
childhood education and care facilities serving the general
public; and
2. Not-for-profit private nonsectarian and sectarian
elementary schools, secondary schools, colleges and
universities.
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Article X, § 3 of the Hawai#i Constitution provides:
Section 3. The board of education shall have the
power, as provided by law, to formulate statewide
educational policy and appoint the superintendent of
education as the chief executive officer of the public
school system.

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Constitution. It is clear that article X, sections 1 and 3 of

our state constitution requires the State to provide for a

statewide public school system, including physical facilities

therefor, and establishes a state Board of Education with the

power to formulate statewide educational policy and to appoint a

superintendent to administer the Hawai#i public school system.

Haw. Const. art. X, §§ 1, 3.

In this appeal challenging the Order of Dismissal, we

view the allegations of the Complaint to be true. See Kealoha v.
Machado, 131 Hawai#i 62, 74, 315 P.3d 213, 225 (2013).

Upon review, we conclude that the McDermotts allege no

facts that would support a finding that the State has failed to

satisfy the requirements set forth in article X, sections 1 and 3

of the Hawai#i Constitution.

There are no constitutionally protected fundamental

rights implicated in the instant case, and the McDermotts do not

allege that they are members of a suspect class. Therefore, we

further conclude that the Circuit Court did not err in dismissing
the case based on a failure to allege a violation of any

constitutionally protected rights or for applying "rational

review" in its Order of Dismissal. See Nagle v. Bd. of Educ., 63

Haw. 389, 393, 629 P.2d 109, 112, (1981) ("Where 'suspect'

classifications or fundamental rights are not at issue, this

court has traditionally employed the rational basis test."

(citation omitted)).

(2) The McDermotts argue that the Circuit Court erred

in determining that the political question doctrine bars the

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McDermotts from challenging the State's budgetary and funding

decisions and the Legislature's determination of funds

appropriated for renovations to Campbell High School.

The McDermotts' Complaint is largely based on their

allegation that Campbell High School's facilities and

extracurricular programs are inadequate to accommodate the

overcrowded student population such that it violates their

children's constitutional rights. Central to their Complaint,

however, is the McDermotts' discontent with the Legislature's
decision not to immediately appropriate $35 million to Campbell

High School that they assert the (former) Governor had proposed

would be used to fund the construction of a new building to

alleviate the school's overcrowded conditions. The McDermotts

further allege that the DOE, BOE, and Governor had breached their

respective duties in failing "to establish the priorities for the

construction of a new high school versus the need to rehabilitate

and add buildings to existing overcrowded high schools."

"[T]he nonjusticiability of a political question is
primarily a function of the separation of powers." Bd. of Educ.

of Haw. v. Waihee, 70 Haw. 253, 262, 768 P.2d 1279, 1285 (1989)

(quoting Baker v. Carr, 369 U.S. 186, 210 (1962)). In

determining whether the political question doctrine should apply,

the Hawai#i Supreme Court has adopted the six-part test set forth

by the United States Supreme Court in Baker. Nelson v. Hawaiian

Homes Com'n., 127 Hawai#i 185, 194, 277 P.3d 279, 288 (2012).

The test states:
Prominent on the surface of any case held to involve a
political question is found: (1) a textually demonstrable

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constitutional commitment of the issue to a coordinate
political department; or (2) a lack of judicially
discoverable and manageable standards for resolving it; or
(3) the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion;
or (4) the impossibility of a court's undertaking
independent resolution without expressing lack of respect
due coordinate branches of government; or (5) an unusual
need for unquestioning adherence to a political decision
already made; or (6) the potentiality of embarrassment from
multifarious pronouncements by various departments on one
question.

Id. (quoting Trs. of Off. of Hawaiian Affs. v. Yamasaki, 69 Haw.

154, 170, 737 P.2d 446, 455 (1987)).

Upon careful consideration of, inter alia, the Baker

test and the McDermotts' arguments concerning justiciability, we

conclude that the McDermotts' allegations pertaining to the

State's budgetary and funding decisions to administer our public

school system, and the Legislature's appropriation of funds to

carry out such decisions, have clearly been committed to those

respective branches of government, and cannot be considered

judicial fare. See Yamasaki, 69 Haw. at 173-75, 737 P.2d at 457-

58 (dismissing consolidated lawsuits as nonjusticiable under the

political question doctrine as any decision by the court would

intrude in an area committed to the legislature). Accordingly,
we conclude that the Circuit Court did not err in dismissing the

instant case based on the separation of powers doctrine and

issues of nonjusticiable political questions.

(4-6) The McDermotts argue that they are entitled to

relief based on various alternative theories, contending that the

Complaint raises factual allegations that implicate violations of

various state statutes and the Hawaii Administrative Rules (HAR),

which they contend would cure any purported constitutional and/or

justiciability defects in the Complaint.

6
The McDermotts argue that the State violated HAR § 11-

11-9 (repealed 2018), which set forth the minimum number of

sanitary facilities that shall be provided in schools. We

conclude that the Circuit Court's dismissal of such claims was

correct under the doctrine of exhaustion of administrative

remedies, as the Department of Health's rules expressly provided

an administrative process for resolving such claims, and nothing

on the record indicates that the McDermotts have pursued such

procedures. See Kellberg v. Yuen, 131 Hawai#i 513, 527, 319 P.3d
432, 446 (2014) ("where a claim is cognizable in the first

instance by an administrative agency alone, judicial review of

agency action will not be available unless the party affected has

taken advantage of all the corrective procedures provided for in

the administrative process." (citation, internal quotation marks

and brackets omitted)).

The McDermotts argue that the State violated HRS

§ 302A-404, which provides that "[s]chool meals shall be made

available under the school meals program in every school where
the students are required to eat meals at school." (Emphasis

added). We conclude, inter alia, that the Complaint makes no

factual allegations that would implicate a violation of the

statute.

We further conclude that the McDermotts make no factual

allegations that would implicate a violation of HRS § 302A-1312.

HRS § 302A-1312(a) requires the DOE to report its six-year

program and financial plan for school repair and maintenance of

public school facilities in the State of Hawai#i to the

7
legislature, and provides the criteria for the content of such

reports. HRS § 302A-1312(b) requires the DOE to develop and

maintain a facilities physical analysis report and a facilities

financial analysis report for each public school. The McDermotts

do not allege that the DOE has failed to produce these reports,

or that the content of the reports fail to comply with the

statutory criteria required under HRS §§ 302A-1312(a) and (b).

Instead, the McDermotts contend that the State's history of

inaction to address the inadequate facilities alleged in their
Complaint renders such reports "worthless and merely 'band-aid'

solutions at best." We conclude that the Circuit Court did not

err in rejecting the McDermott's claims for relief pursuant to

HRS § 302A-1312.

For these reasons, the Circuit Court's January 18, 2017

Judgment is affirmed.

DATED: Honolulu, Hawai#i, January 31, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
John S. Carroll and
Robert K. Matsumoto, /s/ Karen T. Nakasone
for Plaintiffs-Appellants. Associate Judge

Kaliko#onalani D. Fernandes, /s/ Sonja M.P. McCullen
Deputy Solicitor General, Associate Judge
Department of the Attorney
General,
(Kimberly T. Guidry, former
Deputy Solicitor General on
the answering brief)

8