*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

E. KALANI FLORES,

Petitioner/Plaintiff-Appellant,

vs.

ARTHUR LOGAN IN HIS CAPACITY AS CHIEF OF POLICE

OF THE CITY AND COUNTY OF HONOLULU; PAUL FERREIRA IN HIS 

CAPACITY AS CHIEF OF POLICE OF THE COUNTY OF HAWAIʻI

POLICE DEPARTMENT; JOHN PELLETIER IN HIS CAPACITY AS

CHIEF OF POLICE OF MAUI COUNTY,

Respondents/Defendants-Appellees.1

SCWC-19-0000841

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-19-0000841; CIV. NO. 3CC191000190)

JULY 12, 2022

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY NAKAYAMA, J.

This case arises from the controversy surrounding the 

construction of the Thirty Meter Telescope (TMT) on Mauna Kea, 

 

1 Pursuant to Hawaiʻi Rules of Appellate Procedure Rule 43(c)(1) (2010),

Arthur Logan, Chief of Police of the City and County of Honolulu, has been 

substituted as a party in place of former Chief of Police Susan Ballard, and 

John Pelletier, Chief of Police of Maui County, has been substituted as a 

party in place of former Chief of Police Tivoli Faaumu.

Electronically Filed

Supreme Court

SCWC-19-0000841

12-JUL-2022

09:19 AM

Dkt. 62 OPA
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

2

located on the Island of Hawaiʻi. Petitioner/Plaintiff-Appellant 

E. Kalani Flores (Flores) challenged the presence of police 

officers from the Honolulu Police Department (HPD) and Maui 

County Police Department (MPD), who were assisting the Hawaiʻi 

County Police Department (HCPD) within the County of Hawaiʻi. 

The Circuit Court of the Third Circuit (circuit court) 

determined that Hawaiʻi Revised Statutes (HRS) § 52D-5 does not 

provide for a private right of action and dismissed Flores’s 

complaint.

On certiorari, Flores argues that the Intermediate 

Court of Appeals (ICA) erroneously affirmed the circuit court’s 

“Order Granting Defendant Susan Ballard’s Motion to Dismiss” 

(Order Granting Motion to Dismiss). We hold that the circuit 

court did not err when it dismissed Flores’s complaint because 

there is no private right of action pursuant to HRS § 52D-5. In 

addition, the ICA correctly determined that mutual aid between 

police departments of different counties is allowed under Hawaiʻi 

law. Accordingly, the ICA did not err by affirming the circuit 

court’s Order Granting Motion to Dismiss and we affirm the ICA’s

Judgment on Appeal.
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

3

I. BACKGROUND

A. Factual Background

In 2014, Flores requested that the Board of Land and 

Natural Resources (the Board) hold a contested case hearing 

prior to approving a sublease of land on Mauna Kea from the 

University of Hawaiʻi to the TMT International Observatory for 

the purpose of constructing the TMT. Flores v. Bd. of Land & 

Nat. Res., 143 Hawaiʻi 114, 117-18, 424 P.3d 469, 472-73 (2018). 

The Board denied Flores’s request for a contested case hearing 

and Flores appealed to the Environmental Court of the Third 

Circuit (environmental court), which agreed that Flores had a 

constitutional right to a contested case hearing. Id. at 116, 

424 P.3d at 471. On secondary appeal, this court reversed the 

environmental court’s decision and held that Flores had a 

“constitutionally cognizable property interest,” id. at 126, 424 

P.3d at 481, but “was not entitled to a contested case hearing 

regarding whether [the Board] should consent to the Sublease.” 

Id. at 128, 424 P.3d at 483. Thus, construction of the TMT was 

allowed to proceed after years of legal challenges.

On July 13, 2019, Flores and a number of other people 

assembled at Puʻu Huluhulu near the access road to Mauna Kea’s 

summit after police officers blocked public access to Mauna 

Kea’s summit. At Puʻu Huluhulu, Flores and the group engaged in 
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

4

religious rituals and expressed their reverence for Mauna Kea 

and opposition to the TMT project while blocking the access 

road. On July 15, 2019, the Chief of HCPD, 

Respondent/Defendant-Appellee Paul Ferreira (Chief Ferreira),

and the Chief of HPD, Respondent/Defendant-Appellee Susan 

Ballard (Chief Ballard), entered into an interdepartmental 

assignment agreement pursuant to HRS § 78-27 (2012),2 in which 

 

2 HRS § 78-27 (2012) provides:

Temporary inter- and intra-governmental assignments 

and exchanges. (a) With the approval of the respective 

employer, a governmental unit of this State may participate 

in any program of temporary inter- or intra-governmental 

assignments or exchanges of employees as a sending or 

receiving agency. “Agency” means any local, national, or 

foreign governmental agency or private agency with 

government sponsored programs or projects.

(b) As a sending agency, a governmental unit of this 

State may consider its employee on a temporary assignment 

or exchange as being on detail to a regular work assignment 

or on leave of absence without pay from the employee’s 

position. The employee on temporary assignment or exchange 

shall be entitled to the same rights and benefits as any 

other employee of the sending agency.

(c) As a receiving agency, a governmental unit of 

this State shall not consider the employee on a temporary 

assignment or exchange who is detailed from the sending 

agency as its employee, except for the purpose of 

disability or death resulting from personal injury arising 

out of and in the course of the temporary assignment or 

exchange. The employee on detail may not receive a salary 

from the receiving agency, but the receiving agency may pay 

for or reimburse the sending agency for the costs, or any 

portion of the costs, of salaries, benefits, and travel and 

transportation expenses if it will benefit from the 

assignment or exchange.

(d) An agreement consistent with this section and 

policies of the employer shall be made between the sending 

and receiving agencies on matters relating to the 

assignment or exchange, including but not limited to 

supervision of duties, costs of salary and benefits, and 

travel and transportation expenses; provided that the 

agreement shall not diminish any rights or benefits to 
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

5

Chief Ferreira delegated police authority to HPD officers who 

were temporarily assigned to support HCPD operations relating to 

the TMT construction project. On July 16, 2019, the Chief of

MPD, Respondent/Defendant-Appellee Tivoli Faaumu (Chief Faaumu), 

entered into an identical interdepartmental assignment agreement 

with Chief Ferreira (collectively, the Inter-Departmental 

Agreements).3

On July 16, 2019, HPD and MPD officers arrived on the 

Island of Hawaiʻi to provide support to HCPD. Chief Ferreira 

deputized the assisting officers from HPD and MPD and instructed 

 

which an employee of a governmental unit of this State is 

entitled under this section.

(e) As a receiving agency, a governmental unit of 

this State may give the employee of the sending agency on a 

temporary assignment or exchange an exempt appointment and 

grant the employee rights and benefits as other exempt 

appointees of the receiving agency if it will benefit from 

the assignment or exchange.

(Emphasis added.)

3 The Inter-Departmental Agreements contained the following recitals:

WHEREAS, HCPD desires the services of [HPD/MPD] 

personnel and [HPD/MPD] has agreed to the temporary 

assignment of [HPD/MPD] personnel and to support and manage 

police operations in conjunction with the Thirty Meter 

Telescope Project (“TMT Project”) and any other assignment 

as deemed necessary by the HCPD Chief of Police or his 

designee with the approval of [HPD/MPD]; and

WHEREAS, this employment is a temporary 

interdepartmental assignment and this employment is made 

under the provisions of [HRS §] 78-27(a-d).

While the Inter-Departmental Agreements cited HRS § 78-27 as authority for 

the inter-department assignments from HPD and MPD to HCPD, the “Delegation of 

Police Authority” attached to each agreement (Delegations) cited HRS § 52D-5 

as authority for Chief Ferreira to deputize the assisting officers to act in 

a law enforcement capacity within the County of Hawaiʻi.
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

6

them to assist with clearing the access road to Mauna Kea’s 

summit so that the construction equipment could proceed. HPD 

officers assisted Chief Ferreira until July 17, 2019, and then 

withdrew once it was determined that their assistance was no 

longer needed.4

B. Circuit Court Proceedings5

On July 17, 2019, Flores filed a “Complaint for 

Declaratory and Injunctive Relief” in the circuit court naming 

Chief Ballard, Chief Faaumu, and Chief Ferreira (collectively, 

the Chiefs of Police) as Defendants. Flores challenged the

presence and legal authority of police officers from HPD and MPD 

within the County of Hawaiʻi. Flores’s complaint alleged that 

the Chiefs of Police violated HRS § 52D-56 by using HPD and MPD 

 

4 Presumably, MPD officers also withdrew on July 17, 2019.

5 The Honorable Henry T. Nakamoto presided.

6 HRS § 52D-5 (2012) provides:

Powers of the chief of police outside own county. 

The chief of police of each county and any duly authorized 

subordinates shall have and may exercise all powers, 

privileges, and authority necessary to enforce the laws of 

the State, in a county other than the county in and for 

which the chief has been appointed, if:

(1) The exercise of such power, privilege, and 

authority is required in the pursuit of any 

investigation commenced within the county in and for 

which the chief has been appointed; and

(2) The concurrence of the chief of police of the 

county in which the power, privilege, and authority 

sought to be exercised is obtained.

(Emphasis added.)
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

7

officers to assist HCPD and that the HPD and MPD officers lacked 

legal authority to exercise police powers within the County of 

Hawaiʻi. Flores sought as relief (1) a judgment declaring that 

the Chiefs of Police violated HRS § 52D-5 by using HPD and MPD 

officers within the County of Hawaiʻi; (2) preliminary and 

permanent injunctions prohibiting the Chiefs of Police from 

violating HRS § 52D-5; (3) a temporary restraining order;7 and 

(4) attorney’s fees pursuant to the private attorney general 

doctrine.

Chief Ballard filed a motion to dismiss Flores’s 

complaint (Motion to Dismiss) pursuant to Hawaiʻi Rules of Civil 

Procedure (HRCP) Rule 12(b)(6).8 Chief Ballard argued that 

Flores’s complaint failed to state a claim upon which relief 

could be granted because there is no private right of action for 

which a plaintiff can seek a remedy for an alleged violation of 

HRS § 52D-5. Citing to Whitey’s Boat Cruises, Inc. v. NapaliKauai Boat Charters, Inc., 110 Hawaiʻi 302, 312, 132 P.3d 1213, 

1223 (2006), as corrected (Apr. 25, 2006), Chief Ballard 

 

7 Flores also filed an ex parte motion seeking a temporary restraining 

order enjoining HPD and MPD officers from assisting HCPD with “keeping 

roadways clear for the movement of construction equipment and vehicles on 

Hawaiʻi Island, and any police activities related thereto, including, but not 

limited to, effectuating arrests, traffic control, [and] transportation of 

detainees” in the area of the protests. (Internal quotation marks omitted.)

8 HRCP Rule 12(b) (2000) provides in relevant part “that the following 

defenses may at the option of the pleader be made by motion: . . . (6) 

failure to state a claim upon which relief can be granted.”
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

8

contended that HRS § 52D-5 does not create a private right of 

action based on the 

following factors: (1) whether the plaintiff is “one of the 

class for whose especial benefit the statute was enacted”; 

(2) whether there is “any indication of legislative intent, 

explicit or implicit, either to create such a remedy or to 

deny one”; and (3) whether a private right of action would 

be “consistent with the underlying purposes of the 

legislative scheme to imply such a remedy for the 

plaintiff.”

Applying these factors to HRS § 52D-5, Chief Ballard argued that 

(1) the statute was enacted to protect local jurisdictions from 

outside investigators and to assure cooperation between the 

chiefs of police; (2) the statute expresses no legislative 

intent to create a private remedy; and (3) a private remedy 

would be inconsistent with the purpose of the statutory scheme. 

Chief Ballard also argued that Flores’s claim was moot because 

HPD officers were no longer on the Island of Hawaiʻi for any 

purpose relating to the TMT.

Chief Faaumu joined in Chief Ballard’s Motion to 

Dismiss. Chief Faaumu agreed with Chief Ballard’s arguments 

that there is no private right of action for alleged violations 

of HRS § 52D-5 and that the case was moot.

Chief Ferreira also joined in Chief Ballard’s Motion 

to Dismiss and agreed that there is no private right of action 

for alleged violations of HRS § 52D-5. Chief Ferreira took no 
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

9

position on whether the case was moot because this argument did 

not apply to him as Chief of HCPD.

On September 12, 2019, Flores filed a memorandum in 

opposition to Chief Ballard’s Motion to Dismiss (Opposition). 

Flores argued that (1) HRS § 52D-5 creates an implied private 

right of action; and (2) his case was not moot because 

exceptions to the mootness doctrine applied. Without seeking 

leave of the circuit court, Flores attached to his Opposition a 

declaration by Flores, a declaration by Flores’s counsel, and 

“Exhibits” (1) through (8).9

On September 17, 2019, Chief Ballard filed a reply 

memorandum in which she argued, inter alia, that (1) the 

declarations and exhibits attached to Flores’s Opposition were 

improper and should be ignored; (2) HRS § 52D-5 was not 

implicated by HPD and MPD officers responding to Chief 

Ferreira’s request for assistance; and (3) the intergovernmental 

assignment of police officers from HPD and MPD to HCPD was 

authorized by HRS § 78-27.

On September 18, 2019, Flores filed an ex parte motion 

for leave to file a supplemental declaration and three 

additional exhibits in support of Flores’s Opposition. A

 

9 The exhibits are various news articles documenting assistance by HPD 

and MPD on Mauna Kea and letters and emails from Flores’s counsel to the 

respective county counsel requesting assurance that HPD and MPD would not 

assist HCPD with regard to the TMT operations again.
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

10

declaration by Flores’s counsel and “Proposed Exhibits” (9) 

through (11) were appended to the ex parte motion (Supplemental 

Filing).

On September 19, 2019, the circuit court granted 

Flores’s ex parte motion and ordered that the declaration of 

counsel and Proposed Exhibits (9) through (11) be included in 

Flores’s Opposition.10

The circuit court heard Chief Ballard’s Motion to 

Dismiss and Chief Faaumu’s and Chief Ferreira’s joinders on 

September 20, 2019. Regarding Chief Ballard’s claim that the 

Inter-Departmental Agreements were authorized by HRS § 78-27, 

Flores argued that HRS § 78-27 did not provide legal authority 

for HPD and MPD to exercise police powers on the Island of 

Hawaiʻi. After hearing argument, the circuit court made an oral 

ruling:

The Court notes that the Court has reviewed the 

legislative history of [HRS § 52D-5] . . . .

The Court views as the purpose is [sic] to provide 

continuity to police investigations from one county 

jurisdiction to another and to also protect the local 

control and assure its cooperation through the provisions 

of notification to a county chief of police when 

investigations are to be pursued within this jurisdiction 

or a jurisdiction.

 

10 In the declaration, Flores’s counsel attested that he required further 

discovery and was still waiting for the Chiefs of Police to produce 

documents. Despite the fact that Flores sought leave to supplement his 

Opposition with matters outside the pleadings, Flores claimed “this case is 

not ripe for summary judgment because discovery is outstanding.”

Exhibits (9) through (11) are the responses to Flores’s first request 

for production of documents by Chief Ferreira, Chief Faaumu, and Chief 

Ballard, respectively, including copies of the Inter-Departmental Agreements.
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

11

So the Court concludes that there is no private right 

of action pursuant to HRS Section 52D-5. Therefore, the

motion to dismiss is granted.

(Emphasis added.)

On November 12, 2019, the circuit court entered the 

Order Granting Motion to Dismiss, citing as the reason for the 

decision that “there is no private right of action pursuant to 

[HRS] § 52D-5.”11 The circuit court also entered Judgment in 

favor of the Chiefs of Police and against Flores on November 12, 

2019.

C. ICA Proceedings

1. Opening Brief

On December 6, 2019, Flores filed a notice of appeal. 

Flores argued that the circuit court erred by concluding that 

HRS § 52D-5 does not provide a private right of action.12 

First, Flores argued that the language of HRS § 52D-5 

evinces a legislative intent to include a private right of 

action. Flores reasoned that because the Legislature included a 

“territorial limit[]” on where police officers can exercise 

their police powers, HRS § 52D-5 creates a right entitling 

Flores to be “free from off island county police officers 

 

11 The circuit court never ruled on Chief Ballard’s objections to the two 

declarations and eight exhibits attached to Flores’s Opposition.

12 Although Flores’s opening brief stated four points of error, each 

alleged error is actually an argument for why HRS § 52D-5 includes a private 

right of action.
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

12

exercising police powers on Hawaiʻi Island.” Flores also 

intimated that a police officer making an arrest outside of the 

officer’s home county violates the arrestee’s Fourth Amendment 

rights. Flores further asserted that when enacting HRS § 52D-5, 

the Legislature included the “requirement of hometown 

origination to avert the evil of off island county police 

invasion” because “off island police” are more likely to violate 

an individual’s rights. According to Flores, the Legislature 

“did not envision or intend for off island police to go to

another jurisdiction” except to investigate a crime related to 

“their home turf.”

Second, Flores argued that HRS § 52D-5 implicitly 

contains a private right of action in order to allow judicial 

review of “illegitimate police activity beyond a county police’s 

home territory.” Flores contended that if the Legislature 

actually intended to preclude a private right of action, and 

thus escape judicial review, “that preclusion violates the 

separation of powers doctrine.” Flores maintained that because 

the Hawaiʻi Attorney General acquiesced and supported the actions 

of the Chiefs of Police, which violated HRS § 52D-5, there must 

be an implied right of action available to facilitate judicial 

review of police activity outside an officer’s home 

jurisdiction. Flores argued that his complaint seeking 
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

13

declaratory relief was consistent with the private attorney 

general doctrine, which permits a private citizen to collect 

attorney’s fees when enforcing an alleged violation of state law 

where the government has failed to do so.

Third, Flores argued that HRS § 52D-5 must include a 

private right of action because it lacks an explicit penalty or 

any other mechanism for enforcement. Flores maintained that 

Hawaiʻi case law precludes a private right of action for tort 

damages only in statutes which already contain enforcement or 

penalty mechanisms, which HRS § 52D-5 does not. Flores also 

contended that it is an open question whether declaratory and 

injunctive relief are available when a statute contains an 

enforcement mechanism.

2. Answering Brief

The Chiefs of Police filed an answering brief on 

August 5, 2020.

First, the Chiefs of Police argued that the mutual aid 

provided by HPD and MPD to Chief Ferreira was authorized by HRS 

§ 78-27, rather than HRS § 52D-5 which is Hawaiʻi’s “hot [or 

fresh] pursuit” statute. The Chiefs of Police contended that 

HRS § 78-27 is Hawaiʻi’s “mutual aid” statute, which allows for

mutual aid — including mutual aid for police services — so long 

as an oral or written agreement exists between the sending and 
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

14

receiving agencies. The Chiefs of Police explained that in this 

case, Chief Ferreira entered into written agreements with Chief 

Ballard and Chief Faaumu for the inter-departmental assignment 

of police officers.13

Second, the Chiefs of Police argued that because 

HRS § 78-27 authorized the mutual aid that Flores challenged, 

the ICA need not reach the issue of whether the mutual aid was 

authorized under HRS § 52D-5. However, the Chiefs of Police

maintained that the circuit court decision could also be 

affirmed on the basis of HRS § 52D-5 because (1) Flores was not 

arrested and thus could not challenge whether HPD and MPD had 

legal authority to act within the County of Hawaiʻi; (2) HRS

§ 52D-5 does not create a private right of action;14 and 

(3) Chief Ferreira’s power to deputize HPD and MPD officers is 

 

13 The Chiefs of Police also cited HRS § 127A-12(c)(2) (Supp. 2017) as a 

statutory basis for mutual aid during emergencies. HRS § 127A-12(c)(2) 

provides in relevant part:

(c) The mayor may exercise the following powers pertaining 

to emergency management:

. . . .

(2) Sponsor and develop mutual aid plans and 

agreements for emergency management between one 

or more counties, and other governmental, 

private-sector, or nonprofit organizations, for 

the furnishing or exchange of . . . police 

services . . . and other . . . personnel[] and 

services as may be needed.

 

14 Chief Ballard repeated the same arguments made before the circuit court 

for why HRS § 52D-5 does not create a private right of action.
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

15

not limited by HRS § 52D-5, because the Charter of the County of 

Hawaiʻi (CCH) § 7-2.4(e) grants Chief Ferreira “such other 

powers, duties, and functions as may be . . . provided by law.”

3. Reply Brief

Flores filed a reply brief on August 31, 2020. In his 

reply brief, Flores rejected the Chiefs of Police’s claim that

HRS § 78-27 authorized mutual aid by HPD and MPD, and insisted 

that “off island police officers” may only use their police 

powers in other counties when the requirements of HRS § 52D-5 

are satisfied. Flores argued that, pursuant to HRS § 78-27(b), 

employees on a temporary assignment are “entitled to the same 

rights and benefits as any other employee of the sending 

agency,” but that the exercise of police powers is neither a 

right nor a benefit.

Flores insisted that HRS § 127A-12 was inapplicable 

because the Chiefs of Police “conspired to violate HRS § 52D-5” 

before any emergency was declared on Mauna Kea. Additionally, 

Flores argued that he satisfied the requirements of standing for 

declaratory relief, notwithstanding the fact that he himself was 

not arrested. Finally, Flores reiterated the arguments made in 

his opening brief that HRS § 52D-5 creates a private right of 

action.
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

16

4. Amicus Curiae Brief

The International Municipal Lawyers Association, Inc. 

(the IMLA)15 filed a motion for leave to file an amicus curiae 

brief in support of the Chiefs of Police, which the ICA granted.

The IMLA explained that mutual aid by law enforcement 

is an essential form of intergovernmental cooperation that is 

common both in Hawaiʻi16 and throughout the United States. 

According to the IMLA, mutual aid “enables jurisdictions to 

access additional resources when the need arises . . . [and] to 

effectively utilize all available resources, coordinate 

planning, and minimize conflict in order to ensure a timely and 

efficient response.” The IMLA noted that the sharing of 

resources within Hawaiʻi is especially important because people 

and resources are not evenly distributed throughout the state17

 

15 The IMLA described itself and its interest in this case as follows:

The [IMLA] is a non-profit, professional organization that 

has been an advocate and resource for local government 

lawyers since 1935. IMLA serves as an international 

clearinghouse of legal information and cooperation on 

municipal legal matters. IMLA has a significant interest 

in the issue presented here, which is the validity of 

mutual aid agreements between and among local and municipal 

governments, including agreements relating to the sharing 

of law enforcement resources.

16 The IMLA cited as recent examples of mutual aid in Hawaiʻi the disaster 

responses after Hurricane Iniki in 1992 and after the eruption of Kilauea in

2018.

17 One example of this uneven distribution of resources is that Honolulu 

County covers approximately 600 square miles, but has four times the number 
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

17

and help from neighboring states cannot arrive in a timely 

fashion.

Second, the IMLA argued that mutual aid is authorized 

by HRS § 78-27, which provides for temporary assignment of 

personnel between state agencies, and by HRS § 127A, which 

provides for rendering of mutual aid during an emergency. The 

IMLA noted that the Legislature enacted HRS chapter 127A to 

“ensure that the preparations of this State will be adequate” to 

address the “existing and increasing possibility of the 

occurrence of disasters or emergencies.” Specifically, HRS 

§ 127A-12(c)(2) permits county mayors to “‘[s]ponsor and develop 

mutual aid plans and agreements for emergency management between 

one or more counties’ for the provision of various services, 

including ‘police services’ and ‘personnel necessary to provide 

or conduct those services.’” (Alteration in original.) The 

IMLA observed that even absent specific statutory authority, 

courts in other jurisdictions have upheld intergovernmental 

agreements for mutual aid under general principles of contract 

law.

Third, the IMLA maintained that HRS § 52D-5, Hawaiʻi’s 

hot- or fresh-pursuit statute, does not limit the ability of 

 

of police officers as the County of Hawaiʻi, which covers more than 4,000 

square miles.
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

18

municipalities to enter into law enforcement mutual aid 

agreements. The IMLA suggested distinguishing between a mutualaid statute, which benefits the receiving agency, and a hotpursuit statute which benefits the sending agency. According to 

the IMLA, “one is not a substitute for the other, nor does one 

preclude the other.” Thus, the IMLA urged the ICA to affirm the 

circuit court and send a “clear signal . . . that mutual aid 

agreements like the one at issue here are broadly authorized 

under HRS § 78-27.”

5. ICA’s Published Opinion

The ICA published its opinion on January 27, 2021. 

Flores v. Ballard, 149 Hawaiʻi 81, 482 P.3d 544 (App. 2021). The 

ICA affirmed the circuit court’s judgment on other grounds.18 

Id. at 92, 482 P.3d at 555.

As relevant here, the ICA considered whether HRS 

§ 52D-5 was implicated by HPD and MPD officers assisting Chief 

Ferreira on Mauna Kea. Id. at 88-89, 482 P.3d at 551-52. The 

ICA reasoned that HRS § 52D-5 applies when a sending police 

department seeks permission to exercise police authority in 

 

18 The ICA cited Tauese v. State, Dep’t of Labor & Indus. Relations, 113 

Hawaiʻi 1, 15 n.6, 147 P.3d 785, 799 n.6 (2006), for the proposition that “the 

result will not be disturbed on the ground that the circuit court gave the 

wrong reason for its ruling.” Flores v. Ballard, 149 Hawaiʻi 81, 88, 482 P.3d 

544, 551 (App. 2021). The ICA noted that “[i]n our de novo review we ‘may 

affirm a grant of summary judgment on any ground appearing in the record, 

even if the circuit court did not rely on it.’” Id. (citation omitted).
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

19

another county “in the pursuit of any investigation commenced 

within” the sending agency’s home county. Id. at 89, 482 P.3d 

at 552. But here, the ICA noted, it was Chief Ferreira who 

requested officers from HPD and MPD “to assist HCPD in handling

matters on Hawaiʻi Island that strained HCPD’s resources.” Id. 

According to the ICA, “[n]either Chief Ballard nor Chief Faaumu 

purported to exercise police authority in the County of Hawaiʻi

‘in the pursuit of any investigation commenced within’ the City 

and County of Honolulu or the County of Maui.” Id. (quoting HRS 

§ 52D-5). Thus, the ICA concluded that HRS § 52D-5 was neither 

implicated nor violated19 and “[i]t was thus appropriate for the 

circuit court to dismiss Flores’s complaint based upon the 

alleged violation of HRS § 52D-5 by the Chiefs of Police.” Id.

Second, the ICA considered whether there was other 

statutory authority for HPD and MPD to support HCPD’s 

TMT-related operations. Id. at 89-91, 482 P.3d at 552-54.

Specifically, the ICA considered whether the Inter-Departmental 

Agreements were authorized by HRS § 78-27, as Chief Ballard 

argued. Id. The ICA pointed out that HRS § 78-27(d) provides 

parameters for the type of agreement:

 An agreement consistent with this section and policies 

of the employer shall be made between the sending and 

receiving agencies on matters relating to the assignment or 

 

19 The ICA did not reach the issue of whether HRS § 52D-5 creates a 

private right of action because it concluded that the statute was not 

violated. Id. at 89, 482 P.3d at 552.
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

20

exchange, including but not limited to supervision of 

duties, costs of salary and benefits, and travel and 

transportation expenses; provided that the agreement shall 

not diminish any rights or benefits to which an employee of 

a governmental unit of this State is entitled under this 

section.

Id. at 90, 482 P.3d at 553. The ICA noted that HRS § 78-27 

contemplates that county police departments could be both 

“sending” and “receiving” agencies, because “Act 253 of the 2000 

legislative session, which resulted in the enactment of HRS 

§ 78-27, mentions ‘police’ three times.”20 Id. The ICA reasoned 

that HRS § 78-27 “protects the temporarily assigned police 

officers’ civil service, collective bargaining, workers’ 

compensation, and other employment rights and benefits during 

the temporary assignment.”21 Id. Thus, the ICA concluded that 

 

20 The ICA pointed out that “[s]ection 74 refers to workers compensation 

benefits for police officers. Section 96 refers to a collective bargaining 

unit for police officers. Section 100 refers to resolution of labor 

grievances involving the police officers’ collective bargaining unit. 2000 

Haw. Sess. Laws Act 253.” Id. at 90 n.8, 482 P.3d at 553 n.8.

21 The ICA also noted that the Inter-Departmental Agreements contained the 

following provisions consistent with HRS § 78-27(d):

3. It is the understanding of the parties that the

State Attorney General’s Office has agreed to pay for 

and/or reimburse the Sending Agency for the costs, any 

portion of the costs, overtime, benefits, and travel and 

transportation expenses on behalf of the Receiving Agency. 

However, HCPD shall ultimately be responsible for said 

costs and expenses should the State Attorney General’s 

Office fail to pay for and/or reimburse the Sending Agency 

for any expenditures related to the TMT Project and any 

other assignment as deemed necessary by the HCPD Chief of 

Police or his designee with the approval of [HPD/MPD]. 

Such expenses may be paid for or reimbursed to the 

[HPD/MPD].

4. The [HPD/MPD] personnel are to carry out and

observe all lawful instructions and orders issued by the
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

21

HRS § 78-27 authorized the Inter-Departmental Agreements for the 

temporary assignment of HPD and MPD officers to support HCPD. 

Id. at 91, 482 P.3d at 554.

Third, the ICA considered whether HPD and MPD officers 

were authorized to exercise police powers within the County of 

Hawaiʻi — which was the conduct specifically challenged by Flores 

in his lawsuit. Id. at 91-92, 482 P.3d at 554-55. The 

Delegations signed by Chief Ferreira and attached to each of the

Inter-Departmental Agreements state:

Under the authority of the Chief of Police, of Hawaiʻi

County Police Department, the following officers of the

[HPD/MPD] (please see attached list), are granted full

police officer power, privilege and authority, under HRS 

[§] 52D-5. The purpose of this delegation of authority, 

while assigned to Hawaiʻi [C]ounty will be to support and 

manage police operations in conjunction with the Thirty 

Meter Telescope project and any other assignment as deemed

necessary by the Hawaiʻi County Police Chief or his

designee. This delegation of Police authority shall be

effective from July 16, 2019 until the end of police

 

appointing authority or designee relative to employment.

5. The [HPD/MPD] personnel shall perform all of 

the work under the supervision of an immediate supervisor 

in the Sending Agency or any other person in the Receiving 

Agency who has the authority to supervise the activities.

. . . .

9. This employment will be subject to all laws,

ordinances, and rules and regulations having the effect of

law governing employment of public employees; and

10. Any and all collective bargaining agreements

pertinent to [HPD/MPD] personnel’s regular positions with

the [HPD/MPD] shall apply, including but not limited to

salary.

Id. at 90-91, 482 P.3d at 553-54.
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

22

operations for this project as deemed necessary by the

Hawaiʻi County Chief of Police.

Id. at 91, 482 P.3d at 554 (emphasis added). The ICA described 

the Delegations’ citation to HRS § 52D-5 as “inapt,” because 

that statute “does not apply to the circumstances described by 

the Delegations.” Id.

However, the ICA surmised that Chief Ferreira was 

authorized to delegate police powers to HPD and MPD officers by

other statutes: HRS §§ 52D-3,22 52D-6,23 and Article VII, Chapter 

224 of the CCH (CCH Article VII). Id. at 91-92, 482 P.3d at 554-

 

22 HRS § 52D-3 (2012) provides: “The chief of police shall have the powers 

and duties as prescribed by law, the respective county charter, and as 

provided by this chapter.”

23 HRS § 52D-6 (2012) provides: “The chief of police may appoint officers

and other employees under such rules and at such salaries as are authorized 

by law. Probationary appointment, suspension, and dismissal of officers and 

employees of the police department shall be as authorized by law.” (Emphasis 

added.)

24 Article VII, Chapter 2 of the CCH (2018) provides, in relevant part:

Section 7-2.1. Organization.

There shall be a police department consisting of a

police commission, a chief of police, a deputy chief of

police, and the necessary staff.

. . . .

Section 7-2.4. Powers, Duties, and Functions of the Chief

of Police.

The chief of police shall be the administrative head

of the police department and shall:

(a) Be responsible for the preservation of the 

public peace, prevention of crime, detection 

and arrest of offenders against the law, 

protection of the rights of persons and 

property, and enforcement and prevention of 

violations of all laws of the state and 
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

23

55. Specifically, the ICA reasoned that (1) HRS § 52D-3 grants 

each chief of police “the powers and duties as prescribed by 

law, the respective county charter, and as provided by this 

chapter[;]” (2) CCH Article VII § 7-2.4(b) empowers the chief of 

HCPD to “[t]rain, equip, maintain, and supervise the force of 

police officers[;]” and (3) HRS § 52D-6 allows the chief of 

police to “appoint officers . . . under such rules . . . as are 

authorized by law.” Id. 

The ICA described the relationship between HRS § 78-27 

and the statutes authorizing Chief Ferreira’s delegation of 

authority as follows:

HRS § 78-27 is a law that authorizes Chief Ferreira 

to temporarily receive police officers from another 

county’s police department to support HCPD operations on 

Hawaiʻi Island. HRS § 78-27 also authorizes Chief Ballard 

and Chief Faaumu to temporarily assign police officers from 

their respective departments to another county’s police 

department. The Hawaiʻi County Charter and HRS Chapter 52D 

authorize Chief Ferreira to appoint and supervise police 

officers in the County of Hawaiʻi, including those 

temporarily assigned to Hawaiʻi Island from Honolulu and 

Maui counties.

 

ordinances of the county and all regulations 

made in accordance therewith.

(b) Train, equip, maintain, and supervise the force 

of police officers and employees.

. . . .

(e) Have such other powers, duties, and functions 

as may be required by the police commission or 

provided by law.

(Emphasis added.)
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

24

Id. at 92, 482 P.3d at 555. Thus, the ICA held that “[a]pplying 

the plain language of HRS §§ 52D-3, 52D-6, and 78-27, and 

Chapter 2 of the Hawaiʻi County Charter, in pari materia . . . 

execution and performance of the Agreements and the Delegations 

by the Chiefs of Police in this case was authorized by law.” 

Id.

Accordingly, the ICA affirmed the circuit court’s 

November 12, 2019 Order Granting Motion to Dismiss and Judgment 

in favor of the Chiefs of Police. Id. The ICA entered its 

corresponding Judgment on Appeal on February 24, 2021. Flores 

filed an application for writ of certiorari on April 22, 2021. 

II. STANDARDS OF REVIEW

A. Motion to Dismiss

A circuit court order granting a motion to dismiss is 

reviewed de novo. Hungate v. Law Office of David B. Rosen, 

139 Hawaiʻi 394, 401, 391 P.3d 1, 8 (2017). “A complaint 

should not be dismissed for failure to state a claim unless 

it appears beyond doubt that the plaintiff can prove no set 

of facts in support of his or her claim that would entitle 

him or her to relief.” In re Estate of Rogers, 103 Hawaiʻi 

275, 280, 81 P.3d 1190, 1195 (2003) (quoting Blair v. Ing, 

95 Hawaiʻi 247, 252, 21 P.3d 452, 457 (2001)). Our review 

is “strictly limited to the allegations of the complaint,” 

which we view in the light most favorable to the plaintiff 

and deem to be true. Id. at 280-81, 81 P.3d at 1195-96. 

(quoting Blair, 95 Hawaiʻi at 252, 21 P.3d at 457). 

However, “the court is not required to accept conclusory 

allegations on the legal effect of the events alleged.” 

Hungate, 139 Hawaiʻi at 401, 391 P.3d at 8.

Civ. Beat Law Ctr. for the Pub. Int., Inc. v. City & Cnty. of 

Honolulu, 144 Hawaiʻi 466, 474, 445 P.3d 47, 55 (2019).
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

25

B. Summary Judgment

If, on a motion asserting the defense numbered (6) to 

dismiss for failure of the pleading to state a claim upon 

which relief can be granted, matters outside the pleadings 

are presented to and not excluded by the court, the motion 

shall be treated as one for summary judgment and disposed 

of as provided in Rule 56, and all parties shall be given 

reasonable opportunity to present all material made 

pertinent to such a motion by Rule 56.

HRCP Rule 12(b).

The appellate court reviews “the circuit court’s grant 

or denial of summary judgment de novo.” Querubin v. Thronas, 

107 Hawaiʻi 48, 56, 109 P.3d 689, 697 (2005). “Summary judgment 

is appropriate ‘if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue of 

material fact and the moving party is entitled to a judgment as 

a matter of law.’” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 

74 Haw. 85, 104, 839 P.2d 10, 22 (1992) (citing HRCP Rule 56(c) 

(1990)) (citation omitted).

C. Statutory Interpretation

“Questions of statutory interpretation are questions 

of law to be reviewed de novo under the right/wrong standard.” 

Nakamoto v. Kawauchi, 142 Hawaiʻi 259, 268, 418 P.3d 600, 609 

(2018).

III. DISCUSSION

On certiorari, Flores argues that the ICA erred by 

(1) ignoring the plain language of HRS § 52D-5 and relying on 
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

26

HRS §§ 52D-3, 52D-5, 78-27, and CCH Article VII to “effectively 

render[] HRS § 52D-5 meaningless”; (2) holding that HRS § 52D-5 

did not apply to the facts alleged in Flores’s complaint, 

despite the fact that the Delegations cited as authority HRS 

§ 52D-5; (3) concluding that HPD and MPD officers were properly 

deputized and acting under the authority of HCPD; and 

(4) failing to address whether Flores had a private right of 

action to challenge the violation of HRS § 52D-5. For the 

following reasons, Flores’s arguments lack merit.

A. There is no private right of action under HRS § 52D-5.

The circuit correctly determined that, based on the 

legislative history and purpose of HRS § 52D-5, there is no 

private right of action under that statute. Here, Flores’s 

complaint and the Chiefs of Police’s Motion to Dismiss were 

filed pursuant to HRS § 52D-5, which states:

Powers of chief of police outside own county. The chief of 

police of each county and any duly authorized subordinates 

shall have and may exercise all powers, privileges, and 

authority necessary to enforce the laws of the State, in a 

county other than the county in and for which the chief has 

been appointed, if:

(1) The exercise of such power, privilege, and 

authority is required in the pursuit of any 

investigation commenced within the county in and 

for which the chief has been appointed; and

(2) The concurrence of the chief of police of the 

county in which the power, privilege, and authority 

sought to be exercised is obtained.
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

27

In his Opposition, Flores contended that declaratory 

relief was available under HRS § 632-125 to determine (1) whether 

HRS § 52D-5 was applicable; and (2) if HRS § 52D-5 was 

applicable, whether the Chiefs of Police violated HRS § 52D-5. 

However, Flores cannot bring an action under HRS § 632-1 for 

 

25 HRS § 632-1 (2016) provides:

Jurisdiction; controversies subject to. (a) In cases 

of actual controversy, courts of record, within the scope 

of their respective jurisdictions, shall have power to make 

binding adjudications of right, whether or not 

consequential relief is, or at the time could be, claimed, 

and no action or proceeding shall be open to objection on 

the ground that a judgment or order merely declaratory of 

right is prayed for; provided that declaratory relief may 

not be obtained in any district court, or in any 

controversy with respect to taxes, or in any case where a 

divorce or annulment of marriage is sought. Controversies 

involving the interpretation of deeds, wills, other 

instruments of writing, statutes, municipal ordinances, and 

other governmental regulations may be so determined, and 

this enumeration does not exclude other instances of actual 

antagonistic assertion and denial of right.

(b) Relief by declaratory judgment may be granted in 

civil cases where an actual controversy exists between 

contending parties, or where the court is satisfied that 

antagonistic claims are present between the parties 

involved which indicate imminent and inevitable litigation, 

or where in any such case the court is satisfied that a 

party asserts a legal relation, status, right, or privilege 

in which the party has a concrete interest and that there 

is a challenge or denial of the asserted relation, status, 

right, or privilege by an adversary party who also has or 

asserts a concrete interest therein, and the court is 

satisfied also that a declaratory judgment will serve to 

terminate the uncertainty or controversy giving rise to the 

proceeding. Where, however, a statute provides a special 

form of remedy for a specific type of case, that statutory 

remedy shall be followed; but the mere fact that an actual 

or threatened controversy is susceptible of relief through 

a general common law remedy, a remedy equitable in nature, 

or an extraordinary legal remedy, whether such remedy is 

recognized or regulated by statute or not, shall not debar 

a party from the privilege of obtaining a declaratory 

judgment in any case where the other essentials to such 

relief are present.
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

28

declaratory relief unless HRS § 52D-5 provides for a private 

right of action. See Alakaʻi Na Keiki, Inc. v. Matayoshi, 127 

Hawaiʻi 263, 285, 277 P.3d 988, 1010 (2012) (citing Cnty. of Haw.

v. Ala Loop Homeowners, 123 Hawaiʻi 391, 407 n.20, 235 P.3d 1103, 

1119 n.20 (2010)) (“In order for a party to sue for enforcement 

under HRS § 632-1, HRS chapter 103F must provide for an express 

or implied private right of action.”). Thus, we must determine 

whether HRS § 52D-5 creates a private right of action.

This court has noted that “[r]equirements imposed by 

statutes do not necessarily give rise to a private right of 

action.” Hungate, 139 Hawaiʻi at 405, 391 P.3d at 12 (citing 

Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979)). This court 

has stated:

In determining whether a private remedy is implicit in a 

statute not expressly providing one, several factors are 

relevant. First, is the plaintiff one of the class for 

whose [e]special benefit the statute was 

enacted; . . . that is, does the statute create 

a . . . right in favor of the plaintiff? Second, is there 

any indication of legislative intent, explicit or implicit, 

either to create such a remedy or to deny one? . . . Third, 

is it consistent with the underlying purposes of the 

legislative scheme to imply such a remedy for the 

plaintiff?

Whitey’s Boat Cruises, 110 Hawaiʻi at 312, 132 P.3d at 1223

(quoting Reliable Collection Agency, Ltd. v. Cole, 59 Haw. 503, 

507, 584 P.2d 107, 109 (1978)) (alterations in original). 

Furthermore, “[w]hile each factor is relevant, ‘the key factor’ 

is whether the legislature ‘intended to provide the plaintiff 
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

29

with a private right of action.’” Hungate, 139 Hawaiʻi at 406, 

391 P.3d at 13 (quoting Whitey’s Boat Cruises, 110 Hawaiʻi at 313 

n.20, 132 P.3d at 1224 n.20).

1. Flores is not part of the class for whose especial 

benefit the statute was enacted.

As the Chiefs of Police pointed out in their Motion to 

Dismiss, the legislative history of HRS § 52D-5 demonstrates 

that the statute was not enacted to allow a private citizen to 

bring a claim for a violation of the statute. 

The 1971 House Journal Standing Committee Report 

provides that:

The purpose of this bill is to add a new section to 

Chapter 52, Hawaii Revised States [sic], which would 

provide continuity to police investigations from one county 

jurisdiction to another. The bill allows enforcement 

powers to police chiefs outside their own county if it is 

required in pursuit of an investigation which commenced in 

their county and also if the concurrence of the chief in 

whose county the power is sought to be exercised is first 

obtained.

H. Stand. Comm. Rep. No. 703, in 1971 House Journal, at 990.

The Joint Select Committee of Kauaʻi, Maui, Oʻahu, and 

Hawaiʻi Representatives noted that:

The purpose of this bill is to add a new section to 

provide continuity to police investigations from one 

jurisdictional region to another.

. . . .

This new section will continue to protect local 

control and assure cooperation through the provisions of 

notification to a county chief of police when 

investigations are to be pursued within his jurisdiction. 

The provisions for crossing county lines is contingent upon 

the fact the investigation must commence in the home county 
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

30

of the investigator. It also assures protection of local 

jurisdictions from encroachment by outside investigators.

H. Stand. Comm. Rep. No. 608, in 1971 House Journal, at 947-48.

The purpose of enacting HRS § 52D-5 was therefore to 

“provide continuity to police investigations from one county 

jurisdiction to another.” H. Stand. Comm. Rep. No. 703, in 1971 

House Journal, at 990. The legislative history of HRS § 52D-5 

does not contemplate a private citizen bringing a claim against 

the Chiefs of Police for a violation of the statute. See H. 

Stand. Comm. Rep. No. 703, in 1971 House Journal, at 990. 

Instead, the legislative history discusses “enforcement powers” 

of the police chiefs outside of their own jurisdictions. H. 

Stand. Comm. Rep. No. 703, in 1971 House Journal, at 990. Thus, 

the police chiefs, and not a private citizen such as Flores, are

part of the class for whose especial benefit HRS § 52D-5 was 

enacted.

2. There is no indication of legislative intent to create 

or deny a private right of action.

The legislative history and text of HRS § 52D-5 do not 

indicate any explicit or implicit intent that the statute 

provides for a private right of action. A private right of 

action is not mentioned anywhere in the legislative history or 

text of HRS § 52D-5. See H. Stand. Comm. Rep. No. 703, in 1971 

House Journal, at 990; see also H. Stand. Comm. Rep. No. 608, in 

1971 House Journal, at 947-48; HRS § 52D-5. Thus, there is no
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

31

indication of an explicit intent to create a private right of 

action under HRS § 52D-5.

Furthermore, there is no indication of an implicit 

intent to create a private right of action. HRS § 52D-5 and its 

legislative history are silent regarding whether the statute was 

intended to create a private right of action. See HRS § 52D-5; 

see also H. Stand. Comm. Rep. No. 703, in 1971 House Journal, at 

990. Although “legislative silence alone is not dispositive,” 

strong evidence is necessary to imply a private right of action. 

Hungate, 139 Hawaiʻi at 406, 391 P.3d at 13 (citing 1A C.J.S. 

Action § 62 (2016)). Flores has not shown strong evidence that

the Legislature intended to create a private right of action in 

HRS § 52D-5.26 Therefore, because there does not appear to be an

implicit intent to create a private right of action under HRS 

§ 52D-5, we decline to infer a private right of action under 

that statute. See Hungate, 139 Hawaii at 406, 391 P.3d at 13 

(quoting Touche Ross & Co v. Redington, 442 U.S. 560, 571 

(1979)) (“[I]mplying a private right of action on the basis of 

[legislative] silence is a hazardous enterprise, at best.”

(alterations in original)).

 

26 Flores contended that “by prohibiting the unauthorized and unlawful 

exercise of police powers outside an officer’s jurisdiction, [HRS §] 52D-5 

implicitly created a private right of action to seek declaratory relief.” 

Additionally, Flores argued that “[i]f the legislature in fact intended to 

preclude judicial review, then that preclusion violates the separation of 

powers doctrine.”
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

32

3. It is inconsistent with the underlying purposes of the

legislative scheme to imply a private right of action.

As discussed above, the purpose of HRS § 52D-5 is to 

“provide continuity to police investigations from one county 

jurisdiction to another.” H. Stand. Comm. Rep. No. 703, in 1971 

House Journal, at 990; see also H. Stand. Comm. Rep. No. 608, in 

1971 House Journal, at 947-48; HRS § 52D-5. In other words, the 

Chiefs of Police correctly pointed out in their Motion to 

Dismiss that “[t]he underlying purpose of [HRS] § 52D-5 is to 

ensure cooperative, mutual aid and assistance between the 

counties’ chiefs of police to conduct investigations in each 

other’s respective jurisdictions.” Implying a private right of 

action under HRS § 52D-5 would be inconsistent with the 

statute’s legislative scheme because allowing a private 

individual to sue police chiefs would interfere with the ability 

of police from different jurisdictions to cooperate and provide 

continuity to police investigations. Thus, implying a private 

right of action would not be consistent with the underlying 

purposes of HRS § 52D-5.

Flores filed his complaint seeking declaratory relief

pursuant to HRS § 52D-5. However, the legislative history of 

HRS § 52D-5 demonstrates that the statute does not provide 

Flores with a private right of action. In turn, the circuit 

court properly granted the Chiefs of Police’s Motion to Dismiss
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

33

because Flores was not entitled to declaratory relief under 

HRS § 632-1.

B. The ICA correctly determined that mutual aid is permitted.

Although the ICA could have affirmed the circuit 

court’s Order Granting Motion to Dismiss because HRS § 52D-5 

does not create a private right of action, the ICA correctly 

determined that mutual aid between different counties is 

permitted. According to Flores, a police officer may only 

exercise police powers in another county when both prongs of HRS 

§ 52D-5 are satisfied, meaning that (1) the officer is pursuing 

an investigation originating in the “sending” jurisdiction and 

(2) the chief of police of the “receiving” jurisdiction 

consents.

However, nothing in the plain language of HRS § 52D-5 

indicates that the statute identifies the only scenario in which 

a police officer may exercise police authority in another 

jurisdiction. Rather, HRS § 52D-5 describes a specific scenario 

in which it is permissible for a chief of police or an

authorized subordinate to exercise the authority of the sending 

county in another county. See HRS § 52D-5.

In addition, Flores’s interpretation ignores the 

practical need for mutual aid – a necessity that the Legislature 

recognized and provided for in other statutes. See HRS § 78-27 
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

34

(providing for the temporary inter-governmental assignment of 

employees by agreement); HRS § 127A-1227 (vesting county mayors 

with authority to “develop mutual aid plans and agreements for 

emergency management” between counties for the provision of 

necessary services, including police services). Furthermore, as 

the IMLA pointed out, mutual aid is an important tool to enable 

state agencies “to access additional resources when the need 

arises[]” and helps facilitate a timely response to emergencies. 

Thus, Flores’s interpretation that HRS § 52D-5 limits all outof-county police action and mutual aid is without merit, and the 

ICA correctly determined that mutual aid between police officers 

of different counties is permitted under Hawaiʻi law.

IV. CONCLUSION

The legislative history of HRS § 52D-5, which was the 

basis of Flores’s complaint, demonstrates that the statute does 

not provide for a private right of action. Thus, the circuit 

court properly dismissed Flores’s complaint. In addition, as 

held by the ICA, mutual aid between police departments of 

different counties is permitted under Hawaiʻi law. 

 

27 The Legislature described the policy and purpose of Chapter 127A 

Emergency Management as: “It is the intent of the legislature to provide for 

and confer comprehensive powers for the purposes stated herein. This chapter 

shall be liberally construed to effectuate its purposes[.]” HRS § 127A-1(c) 

(Supp. 2019).
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

35

Accordingly, we affirm the ICA’s February 24, 2021

Judgment on Appeal, which affirmed the circuit court’s 

November 12, 2019 Order Granting Motion to Dismiss.

Peter S.R. Olson

for petitioner E. Kalani Flores

Robert M. Kohn

(Ernest H. Nomura and 

Nicolette Winter with him

on the briefs) for 

respondent Arthur Logan in his

capacity as Chief of Police of 

the City and County

of Honolulu

Peter A. Hanano 

for respondent John Pelletier

in his capacity as Chief of 

Police of Maui County

Lerisa L. Heroldt 

(Laureen L. Martin with her

on the briefs) for respondent 

Paul Ferreira in his capacity as 

the Chief of Police of the 

County of Hawaiʻi 

Alan D. Cohn* (Richard F. 

Nakamura, Steven L. Goto and 

Jason E. Meade*, with him on the 

briefs) for amicus curiae 

International Municipal Lawyers 

Association, Inc.

Kimberly T. Guidry and 

Kalikoʻonālani D. Fernandes

for amicus curiae State of 

Hawaiʻi

*admitted pro hac vice

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins