may it please the court i'm scottish for the union i'd like to try to preserve three minutes of my time for has this court recognized in the kaia tano case that constitution generally prohibits the implementation of state legislation that would impair the obligations of a preexisting contract and the burden of justifying the impairment is even higher when the state itself is a party to the contract in this case the union has two contracts with the hawaii health systems corporation that prohibit changes in conditions of work without mutual consent during the term of the treatments and these are not one off contracts for the product of a mature o'clock to bargain relationship that's gone on for decades and the issue whether privatization would violate the language of  a s has come up before the issue was resolved by an arbitrator and the union won the arbitrator heard testimony about the bargaining history concluded that  agreements preclude privatisation of work during the agreement if hawaiian law would not have allowed the work to be privatized who were the parties to that arbitration the parties to that arbitration were  that the employers that are party to these multiemployer collective bargaining agreements who bargain together as a group on one side of the table with the union on the other are in privity for purposes of issue preclusion and they're fairly quote to protect the union from legislation intended to abrogate the effect of the kono case and later in that arbitration decision the arbitrator discusses collective bargaining agreement to then exist and collective bargaining agreement had been signed allowed to privatisation and the arbitrator rejected that argument saying that no act ninety was passed after we entered into our agreement why are they immune from suit in federal court well there are two eleventh amendment arguments there is the one they actually pled in their answer as their six the firm of defense which is that they can't be sued based on state law which we agree with but we're not suing them based on state law and then there is the eleventh amendment argument that suggested by the courts citation of the ayers case and it's order that case simply holds that where this suit is in substance if suit for specific performance this it will be treated as a suit against the state but that's interpreted narrowly as the supreme court made clear in that georgia railroad  the wire revised statutes was amended in two thousand and seven and the amendment added a provision that says this subsection shall not trump collective bargaining agreements and two provisions  collective bargaining agreements that exist on an after january one two thousand and seven so the statute itself eighty nine point nine t says that it doesn't trump the provisions of collective bargaining agreements so the argument can be made that somehow because eighty nine point nine d doesn't allow this to be bargained it trumps what we actually have in our contract i'm not sure i understand your timing argument because some of the things that are relevant happened before two thousand and seven and some of them happened after that is the arbitration agreement happened before which interpreted the text of the c b i then in existence to mean followed your timing short what i'm suggesting is that the statute eighty nine point nine t says that nothing in eighty nine point nine the trumps provisions in collective bargaining agreements that exist after january one two thousand and seven and our current collective bargaining agreement provision exists right now and was entered into after two thousand so ok so it can't who wouldn't otherwise supply is this a matter of reclassification you know no it's not classification reclassification deal with what job title someone has within the civil service this isn't classification a reclassification this is something that affects whether the bargaining unit members are going to have their jobs or it's going to be contract that out and they'll be turned into private employees it's not one of the things listed in eighty nine point nine d as an impermissible subject of bargaining the other question that i have for you is if we get to this point in the analysis that we are government is entitled to impair a contract even under the contract clause if there's an important i'm not i'm paraphrasing but if there's a very important public value to be served there's a different phrase it's necessary to fulfill all something when other but h that standard play in this case in other words even if you get all the way to the end of the a mouse us what is there an important public purpose that is served by this statute that would permit a state to do what it's done notwithstanding everything else but the impairment itself has to be reasonable and necessary not just the statute there are three reasons why the state wouldn't be able to show it's justified first act one of three itself doesn't have an implementation date the statute itself doesn't require that the transaction closed before our cbs second the problem that act one of three was intended to address was known when the expires we have only a year on our contract we've suggested ways they could do this now such as by leasing the employees heiser or otherwise preserving and substantial part the provisions of our contract that allow people to accumulate pension credits accumulate credits for retirement cumulate retention points for the civil service there's certainly ways to do this without impairing the contract of the u w members is is this is that you don't have to answer this if you don't want to but is this a case in which our mediation unit could be of assistance to the parties well your honor the truth is that without our contracts we don't have the leverage to make this happen when we had our contract and if we had our contract rights we know this is could happen when our contract is over without our contract rights we don't have any leverage to even form you know if for whatever reason the the workers here at u p w would lose the protections of the last year of a civil service contract there are people who have been working towards civil service retired people but you never see how many employees more than thirty will lose notion very thing yes according to the declaration is filed by mr look on a little that are part of the record many more won't have enough retention credits to stay in the civil allowed people to apply for vacant civil service positions not even to have the right crater than anyone walking off the street to take them there aren't five hundred vacant civil service possessions on maui and certainly not for certified nursing assistants the only public hospital on maui is the maui morrill medical center there aren't jobs online i it's a tiny island for people trained in health care this is health care facility these people are going to lose their civil service positions even if they have the retention points they would have to leave the island and try to fill civil service positions elsewhere in hawaii if they can you know as a practical matter that there isn't an option argument but there is a huge deference to workers whether it happens now word happens year from now you know for the people who lose their pensions or their health care or who have twenty three retention points and therefore can't stay in the civil service but will have twenty four if they wait till the end of lives that is the contract expires june thirtieth of of next year of twenty seventeen if and when would the current plan go into effect june thirtieth of twenty sixteen it was exactly a year just exactly here and again i'd note that act one of three does not require that this be done on a particular date and not the contract itself with heiser you know acknowledges this the court my name is doug chen and the hawaii state attorney general of with me is deputy attorney general richard thomas and we are here arguing on behalf of hawaii's state governor david he gave thank you to act one of three is hawaii state the earlier argument the the concept or the the statement that privatization and i'm paraphrasing these is unlawful unless authorized by law that didn't come from the live human arbitration decision that came from lee since opposing counsel was willing to answer this question i don't know whether you are or not i mean you don't have to but it struck me i really don't understand why this can't wait till the year has elapsed and that would be consistent with the legislation and it would avoid all this is this is this a matter that can be dealt with potentially by our mediation and i perceive that in to a certain extent i would say even the lower court made an attempt to try to move in that direction before then surely deciding the case upon jurisdictional grounds and then saying that the federal court didn't ha think to that end a couple comments i mean i think one point about the idea of waiting the year is first of all that actually is what made me think about the question that came from the ninth circuit  impairs that contract so we want an injunction yeah it's just the implementation of the statute and the effect in every such case is to leave in place an existing contract and that doesn't make it a case for specific performance the other part of the contract isn't even a party to this case so how is this a specific performance as distinct from saying the legislature passed something that it couldn't do so we enjoined me the effectiveness wires that specific performance it doesn't have anything to do with a particular term of the contract it's not directed towards the other party to the contract i think because it's transforming this agreement which is about the conditions of employment  into a promise of employment it's telling them that we are going out what if we parse your theory there could be no contract cause case against a state that could be successful because in every such case the effect is to leave in place an existing contract with all of its various terms i don't know if that's necessarily true and that's because i think in quiet tunnel that was an example where we were talking about a bargain for terms of employment that had to do with a payroll and i don't think it's that thanks a question of whether whether whether the particular thing that they're concerned about here is or is not a term of employment but that's a merits a question that's  not that's not a jurisdictional question because if you don't mind i wanted i thought i'd try to answer your question another way so appreciate your your point what is occurring right now in the state legislature and i'm all i  have no problem sharing all this is that there are half a dozen bills that are pending right now that are trying to do exactly what's being described as what you people you once in other words they're trying to talk about giving them more credits or allowing them to be able to purchase their time more or do take some sort of action that protects them in that way i think some of the concerns that have occurred in testimony and i will be frank it comes from the state  has to do with the fact that if for example employees are being leased back to a private entity that could actually it could actually impact our employee retirement system because of that either because of the tax implications or the requirements of the entire policy questions are are separate and apart from what we have to decide here the first question is whether this is an ordinary contracts class claim by any as you passed a statute that you are not authorized by the federal constitution to pass because it impairs an obligation of contract and if we have jurisdiction then when what we do about the merits and the policy questions really are not for us but  i appreciate your sharing thank you are you saying that the legislature might make fix this is that my hearing which are i think that potential is there and my suggestion to the court would be in the courts absence of being able  but but in addition to taking the legislative what do you think about us staying the case until may thirty first or something like that in the report from councils of the well that i don't think it's necessary in the sense why when the legislature which our argument is that it's the civil service system it is their creation it's their decision is their public policy in terms of what they decide to do with the civil service system and i think there are policy considerations that caused the legislature to make a decision to just continue operations in melike county now for example what is in the record is the fact that the hospital system is losing forty two  church for example only nine people have accepted placement into or out of the five hundred positions that are that are being consistently reported to the on the record to the court this is how it actually breaks down for you p t w there were two to remain within the system either either through h s c or through inner jurisdictional agreements that have been reached with with other persons so you challenging the declaration that talks about the number of people who would lose their pension benefits and so forth are you saying no that's an accurate no i think that i think that's that's that's a different point but in terms of the people who are actually losing their job or being required to leave the island i think that is being overstated in other words i think  the reality is needs people to be able to work in its hospitals and it's exactly the people in that limited population i'm afraid i don't follow your answer to this is my fault not yours but if you're telling us that the legislature is working on a legislative fix for this and it's likely to come if it's going to come within about six weeks i'm not clear why we shouldn't just state a case until the six weeks have expired and see if this is no mood or not see if they've taken care of it you know i can understand the i can understand the court's thinking behind that because i could see how the lower court was moving in that direction as well in other words there was a lag between the time that we experience another bill is of allowing them to be able to vest early everything that i'm saying comes with its own set of problems in terms of you know what that actually how that affects for example the retirement system or how that effects you know whether or not we're offering public employees to do a private service at this point in time i think that's it's all it's not as i would be it would be unfair for me to promise the court that bills are going to make it all the way through the legislature i don't think that would be accurate i think ultimately when judge gilmore was faced with the same with the same sense that you  are almost mid april that's true that's true however what i would suggest is that this is not you w s only alternative not only is it not the correct path that's not also questions the court you know that's not really your question we're faced with a legal question and not a policy question at least that's how i view it and i guess my one me question for you is whether the status when you have sovereign immunity for this claim in state court we have not so they can sue you in state court or in the contracts clause and you could not get that dismissed jurisdictional grounds to record in fact i would i would dare say that that within the you know within the options that are available they've already filed a grievance so this case with a grievance that in its content looks just like what  really that relates to state law and we're trying to which has been followed there's no question that the state winds the state law the question is whether it's prohibited under the federal constitution for that statute to go into a fact and you're saying abercrombie the correct venue to bring a privatization claim is in state court ok that and you and i know what your arguments are about the two thousand and two arbitration that said that this contract language does include a prohibition on privatization under under romain we are asking this court to not perpetuate one decision that was made by an arbitrator who was not a federal  respond to the live human arbitration but the state has never agreed to a fact it is always taking the position that section fourteen point zero one means exactly what it says i would strongly urge this court not to come to a decision that takes the plain meaning of that sentence and turns it into something else i think all of us would agree if we look at that sentence that it is clearly talking about a preservation cla to address briefly the essentially extra record arguments about the status in the hawaii legislature and the efforts to ameliorate this it's true that the why legislature could fix some of the substantial impairment through a different statute but we don't have that statue were here in this statute and the implementation of it now is a violation of the contract cla without the same thing happened before judge gilmore and that the state came in and said well we really love the workers and we want to fix the problem and we'll figure out interest occasional transfers and maybe the legislature will deal with the problem  ruling from the corps that this does violate the contract clause to implement the statute that may not happen the governor isn't supporting fixing the problem and if this court doesn't rule th violates the contract clause the problem may not be fixed are there ways that the problem could be fixed yes we agree that there are ways that the problem could be fixed and we would certainly like to see the problems fixed