Opposition Brief — Cammack v. Waihee

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No. 91-796

Supreme Court, U.

FILED

LJAN 17 1992

= 1

In The

ore oF Te cm

Supreme Court of the United Stafes

October Term, 1991

NELL A. CAMMACK, et al.,

Petitioners,

JOHN WAITHEE, Governor of Hawaii, et al.,

Respondents.

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

GOVERNMENT RESPONDENTS’

BRIEF IN OPPOSITION

RoNALD B. Mun*

Corporation Counsel

City and County of

Honolulu

Kare K. IcHipa

Deputy Corporation

Counsel

City and County of

Honolulu

Honolulu Hale

Honolulu, Hawaii 96813

(808) 523-4832

Counsel for Respondents

Mayor, Managing Director,

and Director of Civil

Service, City and County of

Honolulu (“City and

County Respondents” )

*Counsel of Record for City

and County Respondents

WArREN Price, [II

Attorney General

State of Hawaii

STEVEN S. MICHAELS**

Deputy Attorney General

State of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1365

Counsel for Respondents

Governor of Hawaii and

Director of Personal

Services, State of Hawati

(“State of Hawaii

Respondents” )

"Counsel of Record for

State of Hawaii Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether any Petitioner has Article III or pruden-

tial standing to challenge Hawaii's adoption of Good

Friday as a “state holiday” or, if so, whether standing, if

any, exists only to attack payment of holiday pay and

other benefits under collective bargaining agreements

making Good Friday a holiday independent of any stat-

ute adopting Good Friday as a holiday?

2. Whether, to the extent standing exists, Hawaii's

Good Friday holiday is sustainable without resort to the

purpose or effects prongs of Lemon v. Kurtzman, 403 U.S.

602 (1971), in light of the history of public adjournments

on Good Friday, and the rationale of Marsh v. Chambers,

463 U.S. 783 (1983)?

3. Whether, in the face of the consistent decisions of

the District Court and the Court of Appeals upholding

Hawaii’s Good Friday holiday as properly motivated by

secular purposes, it would be appropriate for this Court

to rule that the purpose prong of the Lemon test for

Establishment Clause challenges has been violated, and,

therefore, the holiday is unconstitutional?

4. Whether, despite the availability of the Friday

before Easter as a full, uniform day of rest for all public

workers in Hawaii, regardless of their religious beliefs,

and the neutral availability of any other public dispensa-

tions on Good Friday (i.e., tolling of court and other

deadlines), it would be proper for this Court to strike

down Hawaii's Good Friday holiday on the ground that

QUESTIONS PRESENTED - Continued

the holiday wrongly advances religion in violation of the

“effects” prong of this Court’s Lemon test?*

* Should certiorari be granted, the Government Respondents

would pose four additional questions for review by the Court.

5. Whether the notice of appeal here is insufficient, in

light of Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988), to

have conferred authority on the court of appeals to rule on

claims by petitioners Lucas, Root, Stapleton, and Wallace, and,

if so, whether the control exercised by petitioner Cammack

over the litigation by her co-petitioners renders her in privity

with these parties and her claim here barred by res judicata?

6. Whether, before reaching the merits of Petitioners’

claims, this Court should first certify questions to the Supreme

Court of Hawaii under its Appellate Rule 13 requesting

answers as to whether Hawaii’s Good Friday holiday, includ-

ing provisions of collective bargaining agreements making

Good Friday a paid holiday, are invalid in light of the Hawaii

Constitution, or Chapter 89, Haw. Rev. Stat. (1985), governing

public employment?

7. Whether, if the summary judgments entered in favor of

Respondents should not be affirmed, this Court should none-

theless refuse to direct a judgment for Petitioners in light of the

existence of issues of material fact and the number of persons

and complexity of contractual arrangements that are affected?

8. Whether, if application of Lemon’s purpose and effects

analyses leave a substantial question here, this case should be

the vehicle for overruling or clarifying Lemon?

iil

PARTIES BEFORE THIS COURT

The Government Respondents are all named defen-

dants in the District Court and officials of the State of

Hawaii or the City and County of Honolulu who are sued

in their official capacities only. As named in the District

Court, the Government Respondents include: John

Waihee, Governor, State of Hawaii, Alfred Lardizabal,

Director of Personnel Services, State of Hawaii, Frank F.

Fasi, Mayor, City and County of Honolulu, Jeremy Harris,

Managing Director, City and County of Honolulu, and

Loretta K. Fukuda, Director of Civil Service, City and

County of Honolulu. In 1991, Mr. Lardizabal left govern-

ment service and has been succeeded by Sharon Y. Miy-

ashiro. In 1991, Ms. Fukuda also retired and was

succeeded by Mr. James T. Sato.

The private Respondents in this case are the five

public employee unions which maintain collective bar-

gaining agreements under Chapter 89, Haw. Rev. Stat.,

with the State of Hawaii or the City and County of

Honolulu, or both. All were named as defendants in the

District Court, and include: Hawaii Government

Employees’ Association, Local 152, AFSCME; the Hawaii

State Teachers Association; the University of Hawaii Pro-

fessional Assembly; the Hawaii Fire Fighters Association,

Local 1463, IAFF; and the State of Hawaii Organization of

Police Officers.

PARTIES BEFORE THIS COURT - Continued

Petitioners Nell A. Cammack, Genie Lucas, Douglas

Paul Root, Carolyn L. Stapleton, and Michele Wallace, at

the time the complaint was filed, were residents of the

State of Hawaii, and taxpayers of the state of Hawaii and

of the City and County of Honolulu. At the time suit was

commenced, Petitioner Cammack was an employee of the

Department of Transportation, State of Hawaii; Peti-

tioners Stapleton and Wallace were students at the Wil-

liam S. Richardson School of Law at the University of

Hawaii at Manoa, on the Island of Oahu; Petitioner Root

was an untenured faculty member at the University of

Hawaii at Manoa; and Petitioner Lucas was a teacher at a

private sectarian elementary and high school on the

Island of Oahu. The present residence and occupation of

each Petitioner is not presently stated in the petition for

certiorari, or elsewhere in the record. The Government

respondents do not dispute that Petitioner Cammack

remains employed by the Hawaii Department of Trans-

portation, and that Petitioner Stapleton is employed by

the City & County.

rere er

TABLE OF CONTENTS

Page

CAUSTICS. PREG OD 6 05s hie censsccceuenseess i

PARTIES BEFORE LFS COURT .. 2. 202... ececess iii

pee Be ee rere. fer rr re eyo Vv

TAGLE OF ALPTIITERS «6 ci ccaseraiebevweresnees vii

ek ee ft PPE C Te eee ek 1

CONSTITUT ONAL PROVISIONS, STATUTES, RULES,

ORDERS, AND CONTRACTS INVOLVED ......... 2

SEATEMENT OF THE CASE. 00620. cee ccveccnes 4

A. The Practice of Adjournment On Good Friday 5

B. Hawaii’s Good Friday Holiday............... 6

.. FCs TRU ek ecw cic cee eee 12

REASONS FOR DENYING THE WRIT............. 15

I. Petitioners Do Not Have Article III or Pru-

dential Standing, or, if They Have Any

Standing, it is Only to Challenge the Collec-

tive Bargaining Agreements, the Merits of

Which are not Even Addressed by the Peti-

tion; Accordingly, This Court Should Deny

Re Perry re ee oe 16

II. Review Should Be Denied on the Basis that

the Mere Public Adjournment on Good Fri-

day, Which Traces its Pedigree Back to the

Origins of this Nation, is Valid Under the

Principles of Marsh v. Chambers, 463 U.S. 783

(1983), and, Thus, Granting Review Would

Not Likely Reach Petitioners’ Issues....... 19

TABLE OF CONTENTS -— Continued

Page

III. Even if Lemon v. Kurtzman, applies to Good

Friday Holidays Generally, it Would Be

Inappropriate to Grant Review to Examine

Petitioners’ “Purpose” Arguments Under the

a TET re eT eee 21

IV. The Petition’s Contention that Adoption of a

Good Friday Holiday, as in Hawaii, Violates

Lemon’s Proscription on Improper Effect of

Advancing Religion Misconstrues the Law and

the Record, and is no Basis for Review...... 26

V. Even if the Questions Presented in the Peti-

tion are Jurisdictionally Substantial, the

Absence of any Conflict in the Lower Appel-

late Courts, and the Number of !urisdictions

that May be Affected by a Precipitous Grant

of Review in this Court, Warrants Denial of

Review and Further Litigation

CONCLUSION ......

vii

TABLE OF AUTHORITIES

Page

Cases:

Allen v. Wright, 468 U.S. 737 (1984) ........... i, 12, 19

Americans United for Separation of Church and State

v. County of Kent, 97 Mich. App. 72, 293 N.W. 2d

Se sy 0a ie ena es be Corse scevenes i, 5, 12, 19, 20

ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989)......... 18

Bender v. Williamsport Area School District, 475 U.S.

5, ERP ery ya rere ear eae eee 17

Bowen v. Kendrick, 487 U.S. 589 (1988)........ uF, Zay 27

California School Employment Ass’n v. Sequoia Union

High School, 67 Cal. App. 3d 157, 136 Cal. Rptr.

EE isi bodes ohcnes Keds shore Tare tehoed es 2% 6

Cammack v. Waihee, 673 F. Supp. 1524 (D. Haw.

DE edb Adewbeds paw nares hs ees ee vaneereces 7, 12, 13

Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991) ..... 14

County of Allegheny v. ACLU, 57 U.S.L.W. 3564

Se SNE En OS oo 5 dn.c4's a ved knee ead ckausee ers 15

County of Allegheny v. ACLU, 492 U.S. 573 (1989)

Lee een Adee Re eee e'e aneurin eeete st 20, 24, 25, 27, 28

Doremus v. Board of Education, 342 U.S. 429 (1952).... 18

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 22

Employment Division v. Smith, 110 S. Ct. 1595

SRE en ee ae rey to ie weer ey Pear Pere 25

Franks v. Niles, 30 Empl. Prac. Dec. 4 33 (N.D.

NE Ss Weary rua UN o a Ae ne ee Ee RTE sew ees 6

Freedom from Religion v. Zielke, 845 F.2d 1463 (7th

See N34 fice Gis oy sco as 66 pees ake sees alee er ees 17

viii

TABLE OF AUTHORITIES - Continued

RE Ro Mi sR ak AE AR eee oe eee 17

Griswold Inn, Inc. v. State, 183 Conn. 552, 441 A.2d

Se I cere Cs rs tt ns re er ee 27, 29

Lemon v. Kurtzman, 403 U.S. 602 (1971)

Mio ee Wie Rae eaten oe ae dc ade ee i, 12, 13, 19, 21-22

Lynch v. Donnelly, 465 U.S. 668 (1984)........ 13, 26, 28

Lyng v. Northwest Indian Cemetary Protective Asso-

ee ee 25, 28

Mandel v. Hodges, 54 Cal. App. 3d 596, 127 Cal.

Ee errr rere 13, 27

Marsh v. Chambers, 463 U.S. 783 (1983) .. i, 5, 12, 19, 20

McGowan v. Maryland, 366 U.S. 420 (1961)..... 10, 26-27

Minority Employees v. Tennessee Dep't of Employment

Security, 901 F.2d 1327 (6th Cir. 1990)............. 16

Montana v. United States, 440 U.S. 147 (1979) ........ 16

Muelier v. Alien, 463 U.S. 388 (1963). ............6.5- 22

Saladin v. City of Milledgeville, 812 F.2d 687 (11th

Me , Er rere rer err re re Te errr ree 19

Simon v. Eastern Kentucky Welfare Rights Org., 426

ee I EN as 6 ow ony ord oe nk ee ee es 19

Taub v. Commonwealth of Kentucky, 842 F.2d 912

Se Ce IN orn ee cas Ven ccecusasvensae tee eo os 17

Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988) . ii, 15

Vohlers v. E.H. Stafford Mfg. Co., 171 Mich. 8, 137

i a ere rer rer nee 5

TABLE OF AUTHORITIES - Continued

Page

Valley Forge Christian College v. Americans United

for Separation of Church & State, 454 U.S. 464

et trp rere ee aT eV eR aa heen tang ev 60k vs 19

Wallace v. Jaffree, 472 U.S. 38 (1985) .............. 13, 23

Witters v. Washington Dep't of Services, 474 U.S. 481

ees gears SNR e-POD 38

Zorach v. Clausen, 343 U.S. 30 (1952) ...............4. 25

STATUTES:

Rs cass oa gcd ae apse vee sesseasinyoas 2

I a use sa ok e veda 6 ee han eda beak vs 2

NN is owing a oa pA 56405555 05 644 os Rebs we 2

Micke occu yy s becene chica tee a eventenens 2

Haw. Rev. Stat., Chapters 76-88 (1985)............... 10

Haw. Rev. Stat., Chapters 78-89 (1985)................ 3

Haw. Rev. Stat., Chapter 89 (1985) ................ ii, iv

Waeee. THO. TOME, BH PoP CIGD. ok ccincecess 10

Haw. Rev. Stat. § 8-1 (1985)......... 2, 10, 11, 13-14, 18

Haw. Rev. Stat. § 80-1 (1985).....................85- 10

peew. Mev. Simt: B GP-S CIGGS). «occ cece cc cecccsves 10

LEGISLATIVE History:

Act of June 13, 1896, ch. 66, §1, Laws of the

EE OE WUNUNNE UF a ves bene b ek eccesccen ices 2, 6

Act of April 28, 1903, ch. 55, §1, 1903 Haw. Sess. L.

Ree er eee rer ney ee Re ea as rn 2, 6

TABLE OF AUTHORITIES - Continued

Page

Act of March 23, 1915, ch. 20, §1, 1915 Haw. Sess.

Es Monee aeueviavoraueasbessebees deenceteteneet 2, 6-7

Act of April 8, 1919, ch. 54, §1, 1919 Haw. Sess. L.

EE eT ET PPT er Pre eT Tee Tree

Act of April 30, 1941, ch. 1, §1, 1941 Haw. Sess. L.

Se Oy Ry Perr ery en ret 2

Governor’s Veto Message dates May 2, 1939......... 9

Se TE FOE kg reer cee ivecteerseereerssacuses 7

ke Se er rr er rer 9

Haw. Conf. Comm. Rep. No. 2-41, reprinted in

gS YS . er er er errr cr rrr rr 9

Haw. H. Stand. Comm. Rep. No. 179-41, reprinted

in 1941 Haw. HJ. 899..............cc cece cece cece es 9

1939 H. Stand. Comm. Rep. No. 254-39, reprinted

ee Pere ere eee 8

Haw. Sen. Comm. Rep. No. 225-29, reprinted in

Pe ee 0 sn or cao cas eee wee eee ee vies 7

Haw. Sen. Stand Comm. Rep. No. 239-31,

reprinted in 1931 Haw. Sen. J. 803................. 7

Haw. Sen. Stand Comm. Rep. No. 282, reprinted in

Se SE Ss EE hc cece e oe keecpanbsduntsees> 7

Haw. Sen. Stand Comm. Rep. No. 296-41

reprinted in 1941 Haw. Sen. J. 719................. 9

S Pe SN EF ooo ces ee vce cnces- a.

1 Annals of Congress 116 (April 19, 1789 (House)) ..... 3

TABLE OF AUTHORITIES - Continued

Page

1 Annals of Congress 1519 (April 2, 1790 (House)) ..... 3

1 Annals of Congress 17 (April 10, 1789 (Senate))..... 3

Annals of Congress 18 (Senate) ...................... 5

Annals of Congress 961 (April 2, 1790 (Senate))...... 3

133 Cong. Rec. $18600 (Dec. 21, 1987)................ 5

134 Cong. Rec. $3147 (Mar. 28, 1988)................. 6

Court Rutes:

Pe I EN svc eceenuros ev cokaeeis yeaa dedeest 15

Pe Mo oan sea even wees ava lveren 10

OTHER AUTHORITIES:

Honolulu Star-Bulletin at 1, June 7, 1941 (C.R. 50

ok PR pate eGo minep ae iby Fs 6x ee Rh De Am MD ne 9

F=t15 sDun® = i) _

oy Ci ee

; = - .

No. 91-796

In The

Supreme Court of the United States

October Term, 1991

NELL A. CAMMACK, et al.,

Petitioners,

VS.

JOHN WAIHEE, Governor of Hawaii, et al.,

Respondents.

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

; >

GOVERNMENT RESPONDENTS’

BRIEF IN OPPOSITION

Respondents Governor of Hawaii, Director of Person-

nel Services, State of Hawaii, and the Mayor, Managing

Director, and Director of Civil Service of the City and

County of Honolulu (hereinafter “Government Respon-

dents”), pray that the petition for review of the judgment

of the United States Court of Appeals for the Ninth

Circuit, entered April 30, 1991, be denied.

JURISDICTION

The judgment of the court of appeals was entered

April 30, 1991, and a petition for rehearing and suggestion

for rehearing en banc was denied August 13, 1991. Juris-

diction in this Court is invoked pursuant to 28 U.S.C.

§ 1254(1). Jurisdiction in the court of appeals was invoked

pursuant to 28 U.S.C. § 1291, and the sufficiency of the

notice of appeal (Resp. App. “A”) is briefed infra pp.

15-16. Jurisdiction in the district court was alleged under

28 U.S.C. §§ 1331 and 1343, and the issue of Petitioners’

standing in that court is briefed infra pp. 16-19.

CONSTITUTIONAL PROVISIONS, STATUTES,

RULES, ORDERS AND CONTRACTS INVOLVED

The First Amendment to the Constitution provides in

part that

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof.

The Fourteenth Amendment to the Constitution pro-

vides in part that

No state shall . . . deprive any person of life,

liberty, or property, without due process of

lawI[.]

The Act of June 13, 1896, ch. 66, § 1, Laws of the

Republic of Hawaii 247; the Act of April 28, 1903, ch. 55,

§ 1, 1903 Haw. Sess. L. 278; the Act of March 23, 1915, ch.

20, § 1, 1915 Haw. Sess. L. 19-20; the Act of April 8, 1919,

ch. 54, § 1, 1919 Haw. Sess. L. 64; and the Act of April 30,

1941, ch. 1, § 1, 1941 Haw. Sess. L. 1-2, are printed in the

attached appendix “B.” Haw. Rev. Stat. § 8-1 in its present

form is reprinted in Pet. App. 122. Relevant and represen-

tative parts of the collective bargaining agreements at

issue are printed in appendix “C.” Statutes of California,

Connecticut, Delaware, Florida, Indiana, Louisiana,

Maryland, New Jersey, New Mexico, North Carolina,

North Dakota, Tennessee, and Wisconsin, recognizing a

Good Friday holiday are referenced at Pet. App. 11 n.2.!

The First Congress’s orders recognizing Good Friday are

reported at 1 Annals of Congress 17 (April 10, 1789 (Sen-

ate)); id. at 116 (April 10, 1789 (House)); id. 961 (April 2,

1790 (Senate)); id. 1519 (April 2, 1790 (House)). Parts of

Hawaii’s public employment laws, Haw. Rev. Stat. Chs.

78-89, which are most relevant to the disposition of the

petition are printed in appendix “D.”

1 A survey by the Department of the Attorney General,

State of Hawaii, has determined that, of the largest 100 cities in

the United States, twenty-five, including Honoluiu, appear to

observe or to have recently observed Good Friday pursuant to

local ordinance, or collective bargaining agreement irrespective

of state statute. These cities include: Chicago, Illinois; Phila-

delphia, Pennsylvania; Baltimore, Maryland; Indianapolis,

Indiana; Memphis, Tennessee; New Orleans, Louisiana; Mil-

waukee, Wisconsin; Cleveland, Ohio; Pittsburgh, Pennsylvania;

Minneapolis, Minnesota; Buffalo, New York; Birmingham, Ala-

bama; Arlington, Texas; Baton Rouge, Louisiana; Rochester,

New York; Shreveport, Louisiana; Lubbock, Texas; Greensboro,

North Carolina; Madison, Wisconsin; Knoxville, Tennessee;

Raleigh, North Carolina; Fort Wayne, Indiana; Dayton, Ohio;

and Chattanooga, Tennessee. The collective bargaining agree-

ments and ordinances supporting this factual statement do not

appear in the record, but will be made available to the Peti-

tioners for their inspection, or to the Court should it so request.

Should certiorari be granted, Respondents would ask the court

to take judicial notice of these materials, and would lodge

appropriate copies of these materials with the Court.

STATEMENT OF THE CASE

This case arises out of arrangements in the Territory,

and now State of Hawaii, whereby public workers have

been granted a holiday the Friday before Easter, known

commonly as Good Friday.

This practice, by which workers are given a day off

or overtime, some government buildings are closed, and

some services reduced, is unaccompanied by any expecta-

tion, threat, or suggestion that any one need use the day

off to attend services. No religious symbols are placed on

public property. No prayers or services in observance of

Good Friday are sponsored by the State. Theaters, disco-

theques, stores, restaurants, and bars — from Kauai to

Kona — remain open without sanction. Indeed, since at

least 1972 the holiday has been the result not of the 1941

statute which first “set aside” Good Friday as a holiday,

but of collective bargaining agreements with Hawaii's

public labor unions. The contracts cover two thirds of the

public work force, mandate a holiday irrespective of state

law, and, accordingly to the undisputed facts, “[a]s a

practical matter,” dictate “similar holidays for employees

not covered by the bargaining agreements.”? In Novem-

ber of 1987, the federal district court held on these facts

that the Constitution does not force the State and its

municipalities to call off the three-day Easter weekend. In

1991, the Ninth Circuit affirmed. The issue here is

whether these rulings should be overturned.

2 Aff. of Kazuo (“Lefty”) Yamamoto, Chief, Labor Rela--

tions Division, Dep’t of Personnel Services, at YJ 12 (C.R. 29 at

13).

A. The Practice of Adjournment on Good Friday.

As shown by Justice Frankfurter’s scholarly concur-

rence in McGowan v. Maryland, 366 U.S. 420, 459 (1961),

public adjournments on Good Friday trace back at least to

the statute of Henry VI mandating that “all fairs and

markets should cease to show forth goods or merchan-

dise on Sundays, Good Friday, and the principal feast

days.” Id. at 471 (quoting 27 Henry VI, ch.5). Good Friday,

like Sunday and Christmas, thereafter became “a part of

the [secular] life-of the English people.” Id. at 477; see

Vohlers v. E.H. Stafford Mfg. Co., 171 Mich. 8, 137 N.W. 127,

129 (1912) (dictum) (quoting cases and rule for tolling of

court deadlines on Christmas, Sunday, Good Friday).

In the First Congress, when the First Amendment

was under debate, the Founders likewise took a leave on

Good Friday. There was no protest. In the first session,

after the votes for President were counted, the Senate met

on April 7, 1789, “to take under consideration the manner

of electing Chaplains,” 1 Annals of Cong. 17, 18 (1834 ed.).

Similar action was taken by the House three days later.

See Marsh v. Chambers, 463 U.S. 783, 788 (1983). Both

houses adjourned the next day, Good Friday. 1 Annals of

Cong. 18 (Senate); id. at 116 (House). In-1790, despite

rancor over earlier resolutions urging a day “of pub-

lic... prayer” upon the submission of the Bill of Rights

to the States, id. at 914, 915, there was no protest when, as

the First Amendment was being considered by the States,

the Senate took leave on April 2, and, in the House, as

stated in its journal, it “Being Good Friday, the members

adjourned without doing any business.” Id. at 1519. Con-

gress has continued to recognize Good Friday (see 133

Cong. Rec. S18600 (Dec. 21, 1987) (remarks of Sen. Byrd);

134 Cong. Rec. $3147 (Mar. 28, 1988) (same)), and at least

a dozen other States formally recognize Good Friday by

Statute or judicial decision. -ee Pet. App. 11 n.2.

Numerous localities recognize Good Friday by bargaining

agreement or ordinance. Supra note 1; See also Franks v.

Niles, 30 Empl. Prac. Dec. ¥ 33,297 (N.D. Ohio 1982);

Americans United for Separation of Church and State v.

County of Kent, 97 Mich. App. 72, 293 N.W. 2d 723 (1983);

California School Employment Ass’n v. Sequoia Union High

School, 67 Cal. App. 3d 157, 136 Cal. Rptr. 594 (1977).

B. Hawaii’s Good Friday Holiday

The codification of Good Friday in Hawaii fits within

the recognitions of Good Friday by other jurisdictions,

which appear on their face to be without sectarian pur-

pose. Indeed, Good Friday was adopted in the then-

Territory of Hawaii more than fifty years ago as a result

of the conflict between management and labor in the

plantation economy that characterized Hawaii at the

time.

The battle for more holidays in Hawaii began in the

1920s. The first holiday statute in Hawaii, Act of June 13,

1896, ch. 66, § 1, Laws of the Republic of Hawaii 247,

recognized New Year’s day, July 4th, Thanksgiving

(November 28), and Christmas (December 25), as well as

January 17 (the day the monarchy was toppled), June 11

(King Kamehameha’s birthday), and the third Saturday in

September. After annexation in 1898, January 17 was

deleted, and Washington’s birthday, Memorial Day (May

30) and Labor Day (September 1) were added, see the Act

of April 28, 1903, ch. 55, § 1, 1915 Haw. Sess. L. 278. The

Act of March 23, 1915, ch. 20, § 1, 1915 Haw. Sess. L.

‘

Pe OO PK FITa mT:

19-20, added primary and general elections days, and, by

the Act of April 8, 1919, ch. 54, § 1, 1919 Haw. Sess. L. 64,

the Legislature added Armistice Day, then known as “Vic-

tory Day.” At that time, and until the Legislature acted in

1941, Hawaii had no holidays between Washington’s

birthday (February 22) and Memorial Day (May 30), a

gap of 97 days (98 days in leap years), far longer than any

other gap in the schedule. See 676 F. Supp. at 1534.

Debates in the 1920s and 30s over adopting a Good

Friday holiday revolved about the economics of doing so.

In 1929, the Senate rejected a bill “to have Good Friday

declared a legal holiday” because it “believe[d] that there

are already enough legal holidays.” Haw. Sen. Stand.

Comm. Rep. No. 225-29, reprinted in 1929 Haw. Sen. J. 727.

In 1931, the Senate again “s[aw] no good reason for

adding to the number of Territorial holidays.” Haw. Sen.

Stand. Comm. Rep. 239-31, reprinted in 1931 Haw. Sen. J.

803; see also 1937 Haw. H.J. 2359.

In 1939, the Legislature passed a bill that, if enacted,

would have “ma[d]e Good Friday a holiday.” Haw. Sen.

Stand. Comm. Rep. No. 282, reprinted in 1939 Haw. Sen. J.

1063. The accompanving House committee report makes

clear, however, that legislators were not as concerned

with promotion of religion so much as assuring a Good

Friday holiday made economic sense.

There are now ten legal holidays in the Territory,

including Thanksgiving, plus primary and gen-

eral election days. Public sentiment is divided

on the advisability of creating Good Friday a

legal holiday. Some feel that we already have too

many holidays to the detriment of both private and

public business. On the other hand, others feel

equally strongly that Good Friday being in the-

ory at least a day of solemn religious observance

by the members of the various churches and

religious denominations should be given legal

sanction. More and more churches are now con-

ducting the three-hour service on that day and

many business houses are allowing their employees

to take time off for this purpose. If the legislature

should feel that we should have more legal holi-

days than we now have, it would seem that in

view of the religious significance of Good Fri-

day observance of this day would have as much

justification as Thanksgiving or Christmas.

1939 H. Stand. Comm. Rep. No. 254-39, reprinted in 1939

Haw. H.J. 890 (emphasis added). In context, the commit-

tee’s reference to church-going was intended to blunt

business claims that this was a holiday the public could

not afford, for if businesses survived in the private sector

by taking off Good Friday, it would not hurt the public

fisc unduly to follow suit. Indeed, such statements well

express concern over the government's ability to retain its

workforce (or function well) if more attractive holiday

schedules were available in the private sector. Likewise,

the committee’s remarks reflect appreciation of the fact

that adopting the business policy of granting some time

off would dampen upward pressure on private labor

demands that come in the wake of extending holiday

benefits to public employees. Characterizing Good Friday

as akin to long-accepted holidays, the committee thus

emphasized that a Good Friday holiday would have “as

much” justification as Christmas day.

Indeed, opponents of the 1939 bill fought the mea-

sure solely on economic grounds. Established business

interests believed that most public workers would not

attend services, and would go shopping to the detriment

SOS > NO OP

of those businesses that would not be open on Good

Friday. As the Chamber of Commerce said, “[t]his addi-

tion of another legal holiday each year would be satisfac-

tory to our body, if it were felt that all merchants of the

city would close, but as we have seen from experience on

other legal holidays, this would definitely not be the

case.” Letter from John A. Hamilton, Chamber of Com-

merce of Honolulu, to Governor Joseph B. Poindexter

dated April 24, 1939, Clerk’s Record (“C.R.”) 47. The

Governor vetoed the measure, stating “I see no reason for

adding to [the holidays] which we now have.” Gover-

nor’s Veto Message dated May 2, 1939, C.R. 47.

In the 1941 session, the matter was taken up again,

and concerns focused even more clearly on economic

impact. The House added Lincoln’s birthday and good

Friday, see 1941 Haw. H.J. 260; Haw. H. Stand. Comm.

Rep. No. 179-41, reprinted in 1941 Haw. H.J. 899, a plan

that the Senate rejected on the ground that, “inasmuch as

Washington’s Birthday is a legal holiday and falls within

the short month of February, to have another holiday

within that month would be inadvisable.” Haw. Sen.

Stand. Comm. Rep. No. 296-41, reprinted in 1941 Haw.

Sen. J. 719. This view, over a dissent, fell in conference to

the House position that more, not fewer, holidays were

needed. Haw. Conf. Comm. Rep. No. 2-41, reprinted in

1941 Haw. Sen. J. 875. But, indeed, even the Senate view

was that Good Friday was “advisable” because there was

no “other holiday” nearby. The Governor, echoing his

1939 message, refused to endorse the bill, stating “the

holidays were getting a bit thick about that time of year.”

Honolulu Star-Bulletin at 1, June 7, 1941 (C.R. 47 at 4). The

bill thus became law without his signature.

Section 8-1, Haw. Rev. Stat., and its predecessors, on

their face say nothing about what it means for days to be

“set apart and established as state holidays,” and, prior to

1971, the working conditions of the State’s civil service

and exempted personnel were governed by a series of

statutes and executive orders. Haw. Rev. Stat. ch. 76-88.°

With the advent of public employee collective bargaining

in 1970, this changed.

Under Haw. Rev. Stat. § 89-9, public employers and

exclusive representatives (unions) are under a duty to

“meet at reasonable times,” “and shall negotiate in good

faith with respect to wages, hours, .. . and other terms

and conditions of employment[.]” Unions, because of

their exclusive bargaining rights, must represent the

interests of all employees in the unit “without discrimina-

tion” and “without regard to employee organization

membership.” Id. §§ 89-2, 89-8(a).

The thirteen collective bargaining units have thus

freely chosen with their employers to designate Good

Friday as a holiday under the collective bargaining agree-

ments. The undisputed testimony below is that “no reli-

gious leaders or officials participate in or encourage, or

are contacted by the bargaining teams in connection with

the inclusion of the Friday before Easter as a holiday in

the collective bargaining agreements” and the purpose of

including Good Friday “has never. . . [been] to facilitate

religious worship or any single faith.” Aff. of Kazuo

3 See, e.g., Haw. Rev. Stat. § 80-1 (1985) (hours of opera-

tion) (no mention of pay or holidays); other than those of Haw.

Rev. Stat. § 1-29, which tolls legal deadlines as does Fed. R.

App. p. 26, there are no mandated consequences for the private

sector on state holidays. See McGowan, 366 U.S. at 554.

cee

6 Oe SRT Or mes

“Lefty” Yamamoto, Chief, Labor Relations Division,

Department of Personal Services, dated July 9, 1987 at J 4

(“Yamamoto Aff.”]. Rather, the holiday, which generally

maintains Hawaii's present schedule of about one holiday

per month, is the most acceptable day off “between

Prince Kuhio Day (March 26) and Memorial Day.” Id. The

union contracts thus embody Good Friday as a holiday

irrespective of Haw. Rev. Stat. § 8-1. See Govt. Resp. App.

“C.” Even if § 8-1 were repealed, the more than 65 per-

cent of public workers in the State workforce governed

by contract would still have Good Friday off (in the

Transportation Department, where Ms. Cammack works,

the contract covers 96 percent of workers, (Yamamoto

Aff. 9 7). And, “given the size of the labor force governed

by collective bargaining,” “inclusion of the Friday before

Easter as a holiday in collective bargaining requires simi-

lar holidays for employees not covered by the bargaining

agreements.” Id. 4 11.

The record evidence, consisting of well over two

thousand pages of depositions and exhibits, dispositively

shows that, in practice, the Good Friday holiday, in

Hawaii, does no more than create a three-day Easter

weekend for our public workforce. Indeed, each of the

Petitioners admitted the lack of any display of Christian

symbology, such as a cross, or message, any public obser-

vance of the holiday, or any message or speech recogniz-

ing the holiday, or suggesting, in any way, that

attendance at services was appropriate, expected, or to be

rewarded. As Ms. Lucas aptly agreed, “the only thing

that happens is that the state employees don’t go to work

and for that reason the buildings are closed and locked.”

Lucas Dep. at 33, lines 12-16 (C.R. 47). Business leaders

presented unrebutted testimony that Good Friday has

become a day that consumers use to take their car for

service (Declaration of Lex Brodie dated Oct. 14, 1987)

(C.R. 63), or run other shopping errands (Declaration of

Robert B. Robinson, Chamber of Commerce of Honolulu,

dated Oct. 14, 1987) (C.R. 61). In fact, since so many

Christians use the day not to attend services, most Chris-

tian churches in Hawaii hold evening Good Friday ser-

vices (Stapleton Dep. at 42, 99); see also Decl. of Richard

Kanayama, State Department of Land and Natural

Resources (state parks) (C.R. 47); Letter from Hiram

Kamaka, Department of Parks & Recreation, City and

County of Honolulu, to Richard Wurdeman dated July 9,

1987 (city parks) (C.R. 23) (all attesting to increased use of

public parks).

C. Proceedings Below.

Petitioners, at the time suit was filed, taxpayers of

the City and County of Honolulu and the State of Hawaii,

sought a declaration that both Hawaii's statutory cod-

ification of Good Friday and the collective bargaining

contracts embodying Good Friday as a paid holiday vio-

lated the Establishment Clause. See C.R. 1. On cross-

motions for summary judgment, the district court con-

cluded that § 8-1 was constitutional, and, a fortiori, so

were the contracts. Cammack v. Waihee, 673 F. Supp. 1524

(D. Haw. 1987). The district court rejected the claims that

taxpayer standing was inapt (id. at 1527-28), and absten-

tion was called for (id. at 1528-29), and upheld the law

under Lemon v. Kurtzman, 403 U.S. 602 (1971), not reach-

ing the Government parties’ claim that dismissal was

required as well under Marsh v. Chambers, 463 U.S.

783 (1983), in light of the long history of adjournments on

Good Friday. Applying Lemon’s “purpose” prong, Judge

Kay followed Wallace v. Jaffree, 472 U.S. 38 (1985), and

Lynch v. Donnelly, 465 U.S. 668 (1984), holding that a law

is not invalid if it is only “ ‘motivated in part by a

religious purpose,’ ” 673 F. Supp. at 1531 (quoting Wal-

lace), and will survive if it has “ ‘a’ clearly secular pur-

pose” (id. at 1535 (quoting Lynch)). Section 8-1 survived in

light of the abundant record expressing “the legislature’s

view that the Territory needed ‘more’ holidays” in the

period “during early to mid-Spring,” and, in contrast to

Mandel v. Hodges, 54 Cal. App. 3d 596, 127 Cal. Rptr. 244

(1976), “the fact that the entire day, rather than a three

hour period which corresponds in length to the tradi-

tional religious service, is a legal holiday.” 676 F. Supp. at

1534-35 (original emphasis). The court rejected Peti-

tioners’ challenge under Lemon's “effects” prong, finding

that, on undisputed evidence, that Good Friday has

become “a traditional shopping day in Hawaii,” and that,

“because of the enactment of the Good Friday statute

which creates a ‘three day weekend’ for many Hawai-

ians” “Hawaii's population is better poised to take

advantage of the state’s unique recreational Oppor-

tunities.” Id. at 1536. Acknowledging that it is just as

likely that granting a uniform day of rest “for all [public]

employees, regardless of their individual religious

choices,” id. at 1537, will result in business pressures that

diminish daytime church attendance as it is likely that

granting Good Friday parishoners time to attend church

would increase it, the court found “there is simply no

evidence that the enactment of Hawaii Rev. Stat. § 8-1 has

advanced Christianity.” Id. at 1536. Because, the court

held, “whether the people of Hawaii choose to spend the

day at the beach or in their churches is an individual

choice,” id. at 1537, “the primary effect of the Good

Friday statute is secular in nature.” Id. The court also

rejected Petitioner’s “entanglement” claims and entered

judgment for Defendants.

On December 4, 1987, three days after judgment

entered in the district court, a notice of appeal was filed

which used an abbreviated caption that referred only to

“Nell A. Cammack, et al.,” and stated in the body thereof

that “Plaintiffs above-named hereby appeal to the U.S.

Court of Appeals for the Ninth Circuit...” (C.R. 71;

Govt Resp. App. “A”). Three and one half years after

appeal was taken, the Ninth Circuit, in a 2-1 vote,

affirmed, Cammack v. Waihee, 932 F.2d 765 (9th Cir.), find-

ing “that the Hawaii statute has a legitimate, sincere

secular purpose, specifically to provide Hawaiians with

another holiday” (Pet. App. 38), and that Good Friday’s

“mere placement on the roll of public holidays” and the

granting of “a paid leave day for all employees covered

by the collective bargaining agreements” (id. at 43) did

not generate improper effects.

The court’s narrow ruling acknowledged, as the Gov-

ernment Respondents did not dispute, that “[ilf Hawaii

went further toward celebrating the religious elements of

Good Friday,” then substantial Establishment Clause

problems might arise (id. at 44). However, those improper

endorsements were not present here. The full court,

dividing 21-6, denied en banc review.

ap ee cn

REASONS FOR DENYING THE WRIT

The instant petition is flawed procedurally, mistaken

legally, misleading factually, and unpersuasive pruden-

tially. For numerous reasons, this Court’s resources:

should not be deployed to review the validity, under the

Establishment Clause, of Hawaii's three-day Easter week-

end for its public workers.4

4 Indeed, the Petition here is puzzling in that it departs

from the views of even advocates for the American Civil Liber-

ties Union, who have virtually conceded in this Court that

Good Friday holidays, such as those at issue here, present no

substantial question. See the colloquy reported from County of

Allegheny v. ACLU, 57 U.S.L.W. 3564 (U.S. Feb. 28, 1989):

What do you do about Christmas? What about

the federal government declaring Dec. 25 a holiday?

[Justice] Scalia asked. That's fine, Litman replied, but

you can’t go from there to holding the Establishment

Clause in abeyance for 45 days.

What if Congress declared Good Friday a federal

holiday? [Chief Justice] Rehnquist inquired. That’s a

harder question, Litman returned, but it might be

justified as simply an acknowledgement that many

people take that day off anyway.

In addition to this fact, it is dubious that Petitioners even

properly appealed to the Ninth Circuit. As we argued below,

the Notice of Appeal which purported to confer power on the

court of appeals was fatally flawed in light of Torres v. Oakland

Scavenger Co., 487 U.S. 312 (1987). Here, as in Torres, Petitioners

Lucas, Root, Stapleton, and Wallace, are mentioned specifically

nowhere in the notice of appeal, and the use of “et al.” in the

caption of the notice, which was referred to in the notice’s

body, is insufficient to “provide such notice” as Fed. R. App. P.

3(c) requires. Id. at 318. The Ninth Circuit recognized

(Continued on following page)

I. Petitioners Do Not Have Article III or Prudential

Standing, or, if They Have Any Standing, it is Only

to Challenge the Collective Bargaining Agreements,

The Merits of Which are Not Even Addressed by the

Petition; Accordingly, This Court Should Deny the

Writ of Review.

This Court, particularly in constitutional cases, has

“strictly adhered to the standing requirements to ensure

that our deliberations will have the benefit of adversary

presentation and a full development of the relevant

(Continued from previous page)

that its analysis of Torres conflicted with the en banc decision of

the Sixth Circuit in Minority Employees v. Tennessee Dep't of

Employment Security, 901 F.2d 1327 (6th Cir. 1990), see Pet. App.

16, and, in an apparent effort to elude the conflict, held the

notice was at least “sufficient to preserve [Petitioner Cam-

mack’s] appeal” (id. at 17 n.7). This, however, is not so. Aside

from the fact that Cammack was mentioned nowhere in the

body of the notice, Cammack was in privity with her co-

plaintiffs in the trial court as a result of her unique role in

organizing the lawsuit, contacting and arranging for counsel,

and enlisting the other plaintiffs. See Cammack Dep. at 53-55;

Wallace Dep. at 60-61. These facts were simply overlooked by

the court of appeals, and nullify any Petitioner’s right to seck

review here. Because Ms. Cammack “control[led] or substan-

tially participate[d] in the control of the presentation on behalf

of [her co-plaintiffs,]” Restatement (Second) of Judgments § 39

(1982), she ought to have been bound by the district court

judgments against her co-plaintiffs. See, e.g., Montana v. United

States, 440 U.S. 147 (1979). This was simply not the case where

a single counsel represented several Plaintiffs, each of whom

simply acted to protect their own respective interests. The case

was not ever properly “in” the court of appeals for purposes of

28 U.S.C. § 1254, or, to the extent it was, the Petition is still

barred by res judicata.

facts.” Bender v. Williamsport Area School District, 475 U.S.

934, 542 (1986). A critical set of reasons why certiorari

should be denied is that Petitioners lack Article III and

prudential standing to litigate the issues raised in the

petition.

First, both courts below, in finding “taxpayer” stand-

ing present, overlooked that the taxpayer injuries claimed

in this case are not related to powers of state and local

governments analogous to those under the taxing and

spending powers. Cf. Grand Rapids School District v. Ball,

473 U.S. 373, 380 n.5 (1985). “ ‘[E]ven within an unitary

court system,’” “the Government has traditionally been

granted the widest latitude in the ‘dispatch of its own

internal affairs.’ ” Allen v. Wright, 468 U.S. 737, 761 (1984).

Although it is true that this Court will not find taxpayer

standing absent “simply because the funding authorized

by [the Legislature] has flowed through and been admin-

istered by [the Executive],” Bowen v. Kendrick, 487 U.S.

589, 619 (1988), the payments made to public workers are

not at their “heart a program of disbursement of funds”

to the general public. Id. See generally Taub v. Common-

wealth of Kentucky, 842 F.2d 912, 919 (6th Cir. 1988); but cf.

Freedom from Religion v. Zielke, 845 F.2d 1463, 1470 (7th Cir.

1988).

Second, Petitioners’ taxpayer injury is not attributable

to the fact that government businesses are closed on Good

Friday; rather, the incremental cost of the holiday (over-

time and holiday pay for some workers) is paid to keep

essential government services open on a day the unions

have voted to maintain as a holiday. Unlike most tax-

payer standing cases challenging general welfare pro-

grams whose disbursements allegedly offend the

Establishment Clause, elimination of the challenged

incremental public cost (overtime and holiday pay) will

magnify the allegedly offensive government conduct (clo-

sure of government offices) because no employee will be

obligated to come in on Good Friday under those circum-

stances. Thus, at its most basic level, there is no necessary

connection between the monies spent and the “good faith

pocketbook” injury claimed by Petitioners. See, e.g., Dor-

emus v. Board of Education, 342 U.S. 429 (1952).

Third, along these lines, at the very least the connec-

tion between the monies spent and any actual concrete

injury to the Petitioners is at least as speculative as that

found by the four Justice opinion in ASARCO, Inc. v.

Kadish, 490 U.S. 605 (1989), to be insufficient to support

standing as a general matter, at least as to state expendi-

tures. See Pet. App. at 20-21 & n.9. Here, as in ASARCO,

there can be no guarantee that barring of overtime pay

for Good Friday work would redound to any Petitioner.

Fourth and most important of all, however, even if

none of the above is correct, Petitioners utterly lack tax-

payer standing to challenge the statutory codification of

Good Friday, as the effects that are independenily trace-

able to Haw. Rev. Stat. § 8-1 (tolling of court deadlines)

do not involve expenditure of any public funds. Rather,

public funds are spent “on” Good Friday only as a result

of the collective bargaining agreements and the collateral

consequences of those agreements on uncovered workers.

Nowhere does the Petition deal with this fact. Indeed, the

Petition nowhere even argues how the Establishment

Clause plausibly dictates nullification of the bargaining

contracts — agreements that, historically, and logically,

have purposes and effects independent of any state stat-

ute. Put another way, nullification of the Hawaii statute

would not make relief for Petitioners, as taxpayers,

“ ‘likely.’ ” Allen, 468 U.S. at 751 (citing Simon v. Eastern

Kentucky Welfare Rights Org., 426 U.S. 36, 38 (1976)). And,

because Petitioners are not in any meaningful sense

exposed to “unwelcome religious exercises” (or the like)

under the present record of Good Friday adjournment in

Hawaii, see Valley Forge Christian College v. Americans

United for Separation of Church & State, 454 U.S. 464, 487 n.

22 (1982); Saladin v. City of Milledgeville, 812 F.2d 687, 692

(11th Cir. 1987), they do not have standing to challenge

the existence of a Good Friday holiday apart from any

expenditure of funds. Accordingly, at the very least, none

of the questions presented are those which Petitioners

have standing to raise, and, even if Petitioners had stand-

ing to challenge the collective bargaining agreements

they simply do not do so in this case. Review should thus

be denied.

II. Review Should Be Denied On the Basis that the

Mere Public Adjournment on Good Friday, Which

Traces its Pedigree Back to the Origins of this

Nation, is Valid Under the Principles of Marsh v.

Chambers, 463 U.S. 783 (1983), and, Thus, Granting

Review Would Not Likely Reach Petitioners’

Issues.

While the Petition is devoted entirely to assessing

Hawaii law under the “purpose” and “effects” prongs of

Lemon v. Kurtzman, 403 U.S. 602 (1971), these questions

would not necessarily be reached by granting review

insofar as the Good Friday holiday is valid in light of

“historical acceptance of the practice” of adjournment on

Good Friday. Edwards v. Aguillard, 482 U.S. 578, 583 n.4

(citing Marsh v. Chambers, 463 U.S. 783 (1983)).

Although the Ninth Circuit held that application of

Marsh to this case was unwarranted in light of County of

Allegheny v. American Civil Liberties Union, 492 U.S. 573

(1989), and the rejection therein of Justice Kennedy’s

reading of Marsh, id. at 602-05, this concern was mis-

placed, and Marsh is squarely applicable. Indeed, the

reason Marsh requires affirmance without resort to

Lemon rests not on the fact that “Hawaii’s recognition of

Good Friday stems back to its days as a territory,” Pet.

App. 25, but that the recognition of Good Friday in this

Nation finds its origins with the very authors of the First

Amendment. See 1 Annals of Cong., 17, 18, 116, 1519

(1834 ed.). Marsh, still good law, holds that “historical

evidence sheds light not only on what the draftsmen

intended the Establishment Clause to mean, but also on

how they thought that Clause applied to the practice

authorized by the First Congress - their actions reveal

their intent.” 463 U.S. at 790. Hawaii, having entered the

Union last, has done no more than what the Founders did

first: adjourn on Good Friday. Saying “a public holiday

can affect the entire populace” (Pet. App. 26) does not

affect this logic, for closing down the “internal workings”

of any branch of Government will have this effect (id.).

This case is virtually identical to Marsh, and, for this

reason the Court would not likely reach the Petition’s

questions presented even if review were granted. Review

should thus be denied.

III. Even if Lemon v. Kurtzman Applies to Good Friday

Holidays Generally, it Would be Inappropriate to

Grant Review to Examine Petitioners’ “Purpose”

Arguments Under the Lemon Test.

Petitioners’ lead contentions why review is proper

are that the panel majority “failed to follow the analytical

approach” of this Court’s treatment of the “purpose”

prong of Lemon v. Kurtzman, and simply “substituted its

own versions of legislative intent for the legislature’s

actual intent” (Pet. 13). Both of these claims are flatly

incorrect, and, in any case, are ultimately irrelevant to the

precise issue here.

The Petition’s challenge to the panel majority's view

of the test for improper legislative purpose wrongly belit-

tles the sensitive manner in which the majority resolves

the tensions in this Court’s pronouncements on this front.

Contrary to the Petition, the panel did not ignore “the

specific purpose” (Pet. at 10), “the relevant purpose” (Pet.

at 12), or “the animating purpose” (Pet. at 13) of the

Statutory addition of Good Friday. Indeed, the panel

agreed that if “only one legislative purpose animates a

governmental act, then it is sound to evaluate such

‘actual’ purpose.” Pet. App. 30 n.12. It is simply false that

the panel “disregarded this Court’s earlier precedents

such as Edwards,” and evidenced a “fundamental misun-

derstanding of the Establishment Clause” (Pet. at 13). The

substantial issue under Lemon, which Petitioners have

never successfully dealt with, is, assuming, arguendo,

those who voted for the Good Friday holiday did not

uniformly have secular motives, how legislative purpose

is to be measured. As the majority rightly holds, Lemon

itself provides the answer: “the statute must have a secu-

lar legislative purpose” (Pet. App. 27). A statute fails the

purpose prong “only if it is motivated wholly by an

impermissible purpose.” Bowen v. Kendrick, 487 U.S. 589,

602 (1988).

This reading of Kendrick accords with this Court's

longstanding rule that that the courts should be “reluc-

tan(t] to attribute unconstitutional motives to the States,

particularly when a plausible secular purpose for the

State’s program may be discerned from the face of the

statute.” Mueller v. Allen, 463 U.S. 388, 395 (1983). While

this Court has required “ ‘that the legislature manifest a

secular purpose,” Edwards, 482 U.S. at 587, there has

never been a mandate that legislators agree on, and pub-

lish, a statement of “actual purpose” for laws to pass

muster. Petitioners, however, would require just that.

The Good Friday holiday in Hawaii survives the

purpose prong, properly conceived. Indeed, the holiday

survives well even under Petitioners’ own formulation of

the test. Petitioners’ threshold error, on this front, is in

even seeking to plumb the depths of the legislative his-

tory when “the face of the statute” manifests “a plausible

secular purpose.” Mueller, supra. There is simply no doubt

that, as of 1941, when Good Friday was added as a

holiday, the longest gap in the holiday schedule (97 days

(98 in leap years)) occurred between Washington’s Birth-

day and Memorial Day. See 673 F. Supp. at 1534. Adding

the Friday before Easter weekend evidences, on the “face

of the statute” the secular intent to facilitate the sort of

family gatherings and festive activities associated with

Easter.

While it may be that “[t]he holly and the ivy . . . this

is not,” Pet. App. 50 (Nelson, J., dissenting), this simply

does not matter for this Court’s purposes. The Petition

agrees “secularized” holidays such as Christmas can be

recognized (see Pet. at 14 n.21, 16), yet, as a device to

facilitate the avowedly secular rites of Spring associated

with Easter, the Good Friday holiday meets, and over-

comes, Petitioners’ claims on their own terms. As we

have maintained, “to have a three-day Easter Weekend

that culminated on Easter Sunday, one must make Good

Friday a holiday” (Gov’t Ans. Br. at 42, 43 (9th Cir. July

28, 1988)). Petitioners admit a State may facilitate celebra-

tion of a “ ‘holiday’s secular aspects’ ” (Pet. at 16), and

the Good Friday holiday, on its face, has such a secular

basis, and, on its face, “further[s] this purpose.” Edwards,

482 U.S. at 586. This secular purpose “is sincere and not a

sham.” Id. at 587. Unlike Wallace v. Jaffree, 472 U.S. 38, 59

(1985), no “previously adopted [Hawaii] law already pro-

vided for such a [spring holiday].” Edwards, 482 U.S. at

588.

Indeed, the legislative history, properly read, con-

firms the secular purpose of the holiday. The record is

clear that, during the entire history of debate over Good

Friday’s additior’ to the list of statutory holidays, the

terms of the controversy were framed by the pros and

cons of adding to the public cost. See Pet. App. 31-35. As

the majority correctly concludes, the “fair reading” of the

1939 House report on which Petitioners dwell (see Pet. at

4-5, 12-13) demonstrates that the primary purpose of the

1939 bill was not only “to have more legal holidays,” Pet.

App. 34, but to do so in a way that would minimize

overall cost. Thus, because “[mJore and more churches

are now conducting the three-hour service on that day

and many business houses are allowing their employees

to take time off for this purpose,” id. at 33, the granting of

a holiday on Good Friday would save costs on a variety

of fronts. It would minimize the relative disruption to the

government, which would get little work done with the

private sector largely closed. It would also efficiently

dampen wage demands by public workers, who would

enjoy the ability to associate with family and acquain-

tances in the private sector who were similarly dismissed.

It is in this context that the Report’s language must be

read.

Far from implying that secular concerns were mere

“ancillary secular objectives” (Pet. at 11), the 1939 Report

sought to locate Good Friday within the category of holi-

days such as Thanksgiving and Christmas, which derive

much of their economic import precisely from the fact

that they have a “religious significance” to many in soci-

ety. In this sense, the 1939 Legislature sought to recognize

Good Friday “as a cultural phenomenon,” County of Alle-

gheny, 492 U.S. at 601. When the 1941 Legislature met, this

concern was equally present, as the Senate Report shows.

See supra p. 9. Although the Senate’s desire to limit the

number of new holidays to as few as possible did not

prevail, the purpose of adding Good Friday was not

suddenly transformed into an “obersv[ance of] it as a

Christian holy day.” County of Allegheny, 492 U.S. at 601.

To the end, the debate over Good Friday was about

economics, with the Governor refusing to sign the legisla-

tion (but allowing it to become law) because in his view

“the holidays were getting a bit thick.”

Seen in this light, the Petition’s argument that

Lemon’s purpose prong is violated is insubstantial. Even

ignoring that the release of the public work force on the

Friday before Easter was expected to and can be seen as,

facilitating the latter “secularized” holiday (see supra p.

9), the Good Friday holiday, as originally enacted, does

not evince an improper purpose. Like New York City’s

annual suspension of alternate-side-of-the-street parking

rules during the Jewish High Holy Days, Hawaii's recog-

nition of the social facts of Good Friday do not evince

improper sectarian purpose. The Petition’s essential argu-

ment thus disintegrates into the position that any accom-

modation not compelled by the Free Exercise Clause is

per se invalid under the Establishment Clause. See Pet. at

13 n. 20. However, this Court has made clear that this is

not the rule, see County of Allegheny, 492 U.S. at 573 n. 59,

and that the rejection of Free Exercise claims “need not

and should not discourage [the Government] from

accommodating religious practices.” Lyng v. Northwest

Indian Cemetery Protective Association, 485 U.S. 439, 455

(1988). This reasoning, which finds its origins in this

century’s leading Establishment Clause cases, e.g., Zorach

v. Clausen, 343 U.S. 30 (1952), has been repeatedly reaf-

firmed. See Employment Division v. Smith, 110 S. Ct. 1595,

1606 (1990).

Moreover, at this stage, it is particularly inappropri-

ate for Petitioners to ask reversal of the lower courts’

analysis of Hawaii's purpose in enacting the 1941 law. As

Justice White aptly observed in Edwards, “if the meaning

ascribed to a state statute by a court of appeals is a

rational construction of the statute, [this Court] normally

accept(s] it,” 482 U.S. at 609 (White, J., concurring in the

judgment), and this “usual rule applies in First Amend-

ment cases.” Id. Although even the most searching review

would reveal the Ninth Circuit’s judgment to be correct,

this added fact makes review particularly inapt.

Indeed, the Petition does not deal at all with the fact

that, in Hawaii today, the collective bargaining agree-

ments independently require a Good Friday holiday.

Thus, even if the original purpose of the Good Friday

statute were improper, that would not be relevant to the

real “controversy” here. The Petition makes no argument

that the purpose of the bargaining agreements is

improper, and collectively bargained Good Friday holi-

days have been universally upheld. See supra p. 6.

IV. The Petition’s Contention that Adoption of a Good

Friday Holiday, as in Hawaii, Violates Lemon’s Pro-

scription on Improper Effect of Advancing Reli-

gion Misconstrues The Law and the Record, and Is

No Basis for Review.

The Petition’s final ground for review, the claim that

it is “inescapable” that the Good Friday holiday has

impermissible sectarian effects (Pet. at 15-18), could not

be more wrong. ‘

First, Petitioners’ argument is refuted by this Court’s

recognition that effects analysis turns on whether “reli-

gion was substantially aided.” Id. Indirect benefits as the

“congressional and Executive recognition of the origins of

[Christmas] as ‘Christ’s Mass,” Lynch v. Donnelly, 465

U.S. 668, 683 (1984), are not improper effects. Indeed,

unlike numerous laws this Court has upheld, e.g.,

McGowan v. Maryland, 366 U.S. 420 (1961), the holiday

here makes no effort to channel the public into church. Cf.

Mandel v. Hodges, 54 Cal. App. 3d 596, 127 Cal. Rptr. 244

(1976) (time off corresponding to three-hour service

struck down); Griswold Inn, Inc. v. State, 183 Conn. 552,

441 A.2d 16 (1981) (bar on Good Friday liquor sales). That

the day’s title may make “references to religious organi-

zations” is irrelevant so long as the holiday is granted to

all neutrally. Kendrick, 487 U.S. at 607 & n.11.

Second, the Petition does not overcome the lower

courts’ conclusion that the “context” of the holiday, free

of ceremony, symbol, and Government exhortation con-

firms compliance with the Establishment Clause. The

Petition agrees that a State may recognize a “holiday’s

secular aspects” (Pet. at 16), but gives no reason why

adjournment from public business is not just such a per-

missible secular “aspect” to recognize.

Third, while the Petition points to other holidays that

were not “similarly” acknowledged, this claim was raised

below in the context of an “effects” challenge only by a

Petition for Rehearing in the court below, plainly too late

to counsel review here. Acceptance of Petitioners’ argu-

ment, moreover, would make Christmas itself plainly

unconstitutional.

Fourth, and relatedly, the Petition wrongly accuses

the majority of condoning the differential “treatment” of

adherents and nonadherents, thus violating “ ‘[t]he clear-

est command of the Establishment Clause.’ ” See Pet. at 18

(quoting County of Allegheny, 492 U.S. at 605). But the

decision below is faithful to the rule that legitimate

accommodation may not “impact adherents and non-

adherents equally.” See Pet. App. at 42 n.17. The fact that

Christians may derive, to use the economic jargon,

“greater marginal utility” from the Good Friday holiday

is irrelevant if the holiday is available to all. See Witters v.

Washington Dep’t of Services, 474 U.S. 481, 486-87 (1986).

Petitioners ultimately urge that there must be some

“secular celebration” (Pet. at 16), apart from a holiday’s

status as a day of rest (such as, in the case of Christmas,

hanging stockings), for public workers to be released. But

this argument does precisely the sort of violence to the

values underlying the religion clauses that Petitioners

seek to avoid. What makes the statutory holiday on

Christmas acceptable is not the fact that Jews or Buddh-

ists feel “comfortable” about decorating a tree, for such

patronizing arguments “require [this Court] to rule that

some religious adherents misunderstand their own reli-

gious beliefs.” Lyng, supra, 485 U.S. at 457-58. The recog-

nition of the “cultural phenomenon” of a certain

religion’s holiday (County of Allegheny, 492 U.S. at 601), if

available to all faiths, leads to benefits to religion that are

only “indirect, remote, and incidental.” Lynch, 465 U.S. at

668. When it is considered that Hawaii’s Good Friday

holiday is proximately caused by collective bargaining,

this is even more true.

4 tt

Petitioners’ “effects” analysis is no basis for review.

V. Even if the Questions Presented in the Petition Are

Jurisdictionally Substantial, the Absence of any

Conflict in the Lower Appellate Courts, and the

Number of Jurisdictions That May Be Affected by a

Precipitous Grant of Review in This Case, Warrants

Denial of Review and Further Litigation.

As the court of appeals recognized, the issue whether

Good Friday may be lawfully adopted as a state holiday

is an issue of first impression at the federal court of

appeals level. Indeed, Petitioners do not assert any inter-

circuit conflict or conflict with a decision of a state’s

highest court. Indeed, the only such decision even argua-

bly in conflict, Griswold Inn, Inc. v. State, 183 Conn. 552,

441 A.2d 16 (1981), was tried on stipulated facts not

found here, and focuses upon the factually distinct issue

of the validity of a closing law on Good Friday. No such

mandatory closings for the private sector are remotely

present in Hawaii's holiday.

Even if, despite the foregoing, the Petition presents

any substantial question, the absence of any real conflict

below strongly counsels against review, particularly

where litigation has not even commenced over the issues

here in many potentially affected jurisdictions. If the

Petition is at all substantial, review should nonetheless be

denied so that the views of at least some of the ten other

federal circuits, and state courts, potentially affected

could be rendered and assist this Court.

CONCLUSION

For the foregoing reasons the writ should be denied.

Dated: Honolulu, Hawaii, January 17, 1992.

RONALD B. Mun*

Corporation Counsel

City and County of

Honolulu

Karv K. IcHipa

Deputy Corporation

Counsel

City and County of

Honolulu

Honolulu Hale

Honolulu, Hawaii 96813

(808) 523-4832

Counsel for Respondents

Mayor, Managing Director,

and Director of Civil

Service, City and County of

Honolulu (“City and

County Respondents”)

*Counsel of Record for City

and County Respondents

WarrEN Price, III

Attorney General

State of Hawaii

STEVEN S. MICHAELS**

Deputy Attorney General

State of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1365

Counsel for Respondents

Governor of Hawaii and

Director of Personal

Services, State of Hawati

(“State of Hawaii

Respondents”)

**Counsel of Record for

State of Hawaii Respondents

APPENDIX “A”

KIRK CASHMERE

ACLU of Hawaii

33 S. King St., Suite 412

Honolulu, Hawaii 96813

Telephone: (808) 545-1722

KAREN ESSENE

707 Richards St., PH 3

Honolulu, Hawaii 96813

Telephone: (808) 531-1411

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

NELL A. CAMMACK, et al., ) CIVIL NO. 87-0260

)

Plaintiffs, ) NOTICE OF APPEAL;

va. ) CERTIFICATE OF

JOHN WAIHEE, et al., ) SERVICE

Defendants.

—— ~~

FILED IN THE

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

DEC 4 1987

at 1 o’clock and 40 min. P.M.

WALTER A. Y. N. CHINN, CLERK

NOTICE OF APPEAL

Notice is hereby given that Plaintiffs above-named

hereby appeal to the U.S. Court of Appeals for the Ninth

Circuit from the final judgment entered in this action on

December 1, 1987 by Judge Alan C. Kay in the US.

District Court for the District of Hawaii pursuant to Rive

4(a)(1), Federal Rules of Appellate Procedure.

DATED: Honolulu, Hawaii, December 4, 1987.

/s/ Kirk Cashmere

KIRK CASHMERE

KAREN ESSENE

Attorneys for Plaintiffs

APPENDIX “B”

(PART “1”)

ACT 66.

AN Act RELATING To Houipays.

Be it enacted by the Legislature of the Republic of Hawaii:

SECTION 1. The following days of each year are hereby

set apart and established as national holidays, to- wit:

The first and seventeenth days of January, the elev-

enth day of June, the fourth day of July, the third Satur-

day of September, the twenty-eighth day of November

and the twenty-fifth day of December.

SECTION 2. This Act shall take effect upon publication.

Approved this 13th day of June, A.D. 1896.

SANFORD B. DOLE,

President of the Republic of Hawaii.

APPENDIX “B”

(PART “2”)

ACT 55.

An Act To AMEND SECTION 1, Act 66, OF THE SESSION LAWS OF

1896.

Be it Enacted by the Legislature of the Territory of Hawaii:

SECTION 1. Section 1 of Chapter 66, of the Session laws

of 1896, is amended to read as follows:

Section 1. The following days of each year are hereby

set apart and established as Territorial Holidays, to wit:

The first day of January,

The twenty-second day of February,

The thirtieth day of May,

The eleventh day of June,

The fourth day of July,

The first Monday in September, known as Labor Day,

The third Saturday in September, and

The twenty-fifth day of December.

SECTION 2. This Act shall take effect from and after the

date of its approval.

Approved this 28th day of April, 1903.

SANFORD B. DOLE,

Governor of the Territory of Hawaii.

APPENDIX “B”

(PART “3”)

ACT 20

AN ACT

TO AMEND SECTION 137 OF THE REvISED LAws OF HAWAII OF

1915, RELATING To Ho.ipays.

Be it Enacted by the Legislature of the Territory of Hawaii:

SecTION 1. Section 137, Chapter 16, of the Revised

Laws of Hawaii of 1915, is hereby amended to read as

follows:

“Section 137. Designated. The following days of each

year are set apart and established as Territorial holidays,

to wit:

The first day of January,

The twenty-second day of February,

The thirtieth day of May,

The eleventh day of June,

The fourth day of July,

The first Monday in September, known as Labor Day,

The third Saturday in September, and

The twenty-fifth day of December, and

All election days, both primary as well as general, in

such county or city and county wherein such election is

held.

And any day designated by proclamation of the Pres-

ident of the United States as a Day of Thanksgiving,

fasting or religious observance, or designated by procla-

mation of the Governor of the Territory as a holiday, shall

be a Territorial holiday.”

SECTION 2. This Act shall take effect upon its approval.

Approved this 23rd day of March, A. D. 1915.

LUCIUS E. PINKHAM,

Governor of the Territory of Hawaii.

APPENDIX “B”

(PART “4”)

ACT 54

[S. B. No. 11]

AN ACT to AMEND SECTION 137 OF THE ReEvisED LAws OF

Hawai, 1915, As AMENDED By Act 20 OF THE SESSION LAWS OF

1915, RELATING To Ho.ipays.

Be it Enacted by the Legislature of the Territory of Hawaii:

SECTION 1. Section 137 of the Revised Laws of Hawaii,

1915, as amended by Act 20, Session Laws of 1915, is

hereby amended to read as follows:

“Section 137. Designated. The following days of each

year are set apart and established as territorial holidays,

to wit:

The first day of January,

The twenty-second day of February,

The thirtieth day of May,

The eleventh day of June, to be known as

Kamehameha Day,

The fourth of July,

The first Monday in September, known as Labor Day,

The third Saturday in September,

The eleventh day of November, to be known as Vic-

tory Day,

The twenty-fifth day of December, and all election

days, both primary as well as general, in such county or

city and county wherein such election is held;

And any day designated by proclamation of the Pres-

ident of the United States as a day of thanksgiving,

fasting or religious observance, or designated by procla-

mation of the governor of the Territory as a holiday, shall

be a territorial holiday.”

SECTION 2. This Act shall take effect upon its approval.

Approved this 8th day of April, A. D. 1919.

C. J. McCARTHY,

Governor of the Territory of Hawaii.

APPENDIX “B”

(PART “5”)

CHAPTER 1. COMMON LAW AND STATUTES.

HOLIDAYS.

[A-1] An Act to Amend Section 21 of the

Revised Laws of Hawaii 1935, Relating to Holi-

days.

Be It Enacted by the Legislature of the Territory of Hawaii:

Section 1. Section 21 of the Revised Laws of Hawaii

1935, is hereby amended to read as follows:

“Sec. 21. Holidays designated. The following days

of each year are set apart and established as territorial

holidays, to wit:

The first day of January,

The twelfth day of February,

The twenty-second day of February,

The Friday preceding Easter Sunday, known as Good

Friday,

The thirtieth day of May,

The eleventh day of June, to be known as

Kamehameha Day,

The fourth of July,

The first Monday in September, known as Labor Day,

The third Saturday in September,

The eleventh day of November, to be known as Armi-

stice Day,

‘

A10

The twenty-fifth day of December, and all election

days, both primary as well as general, in such county or

city and county wherein such election is held;

And any day designated by proclamation by the

President of the United States as a day of thanksgiving,

fasting or religious observance, or designated by procla-

mation by the governor of the territory as a holiday, shall

be a territorial holiday; provided, however, that when

any of such holidays fall on a Sunday, the same may be,

by proclamation of the governor, observed upon the fol-

lowing Monday.

Whenever in the opinion of the governor a public

emergency shall exist, and it shall to him seem to be in

the public interest, he may by proclamation designate

and proclaim as legal banking holidays in the territory

such number of consecutive days as in his judgment the

emergency may require, with power in him to extend the

same as may seem advisable; which proclamation of holi-

days shall not be taken as relating to any business other

than that of banking and kindred operations, nor as pro-

hibiting, perforce, any voluntary conduct of banking

business, in whole or in part, except to the extent

declared in such proclamation or in any further procla-

mation in enlargement or modification thereof.” [L. 1896,

c. 66, s.1; am. L. 1903, c. 55, s. 1; am. L. 1911, c. 167, s. 1; s.

137; am. L. 1915, c. 20, s. 1; am. L. 1919, c. 54, s. 1; am. L.

1923, c. 151, s. 1; am. L. 1933, c. 3, s.1; R. L. 1935, s. 21; am.

L. 1941, c. 132, s. 1.]

Section 2. This Act shall take effect upon its approval.

(Became effective April 30, 1941, without the Gover-

nor’s signature.) H.B. 154, Act 132.

All

APPENDIX “C”

(PART “1”)

UNIT 1

AGREEMENT

Between

STATE OF HAWAII

CITY & COUNTY OF HONOLULU

COUNTY OF HAWAII

COUNTY OF MAUI

COUNTY OF KAUAI

and

UNITED PUBLIC WORKERS

LOCAL 646

AMERICAN FEDERATION OF

STATE, COUNTY & MUNICIPAL EMPLOYEES,

AFL-CIO

BLUE COLLAR NON-SUPERVISORY

BARGAINING UNIT

JULY 1, 1985-JUNE 30, 1987

THIS AGREEMENT is entered into this 29th day of

March, 1985 by and between the STATE OF HAWAII, the

CITY AND COUNTY OF HONOLULU, the COUNTY OF

HAWAII, the COUNTY OF MAUI, AND THE COUNTY

OF KAUAI, hereinafter collectively called the

EMPLOYER, and the UNITED PUBLIC WORKERS,

LOCAL 646, AMERICAN FEDERATION OF STATE

COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO,

hereinafter called the UNION.

Al2

Section 1. RECOGNITION.

1.01 The Employer recognizes the Union as the

exclusive bargaining representative for those public

employees in the blue collar non-supervisory unit.

[MATERIAL DELETED]

Section 35. HOLIDAYS.

35.01 The following days of each year are established

as holidays:

New Year’s Day -First day of January

Presidents’ Day -Third Monday in February

Prince Jonah Kuhio

Kalanianaole Day -Twenty-sixth day of March

Good Friday -Friday preceding Easter

Sunday

Memorial Day -Last Monday in May

King Kamehameha |

Day -Eleventh day of June

Independence Day -Fourth day of July

Admission Day -Third Friday in August

Labor Day -First Monday in September

Discoverer’s Day -Second Monday in October

Veterans’ Day -Eleventh day of November

Thanksgiving Day -Fourth Thursday in November

Christmas Day -Twenty-fifth day of December

All election days, except primary and special election

days, in the County wherein the election is held.

Any day designated by proclamation by the Presi-

dent of the United States or by the Governor as a holiday.

35.02 Observance of Holidays.

(a) Employees whose workdays fall on Mon-

day through Friday during the workweek

A13

in which a holiday occurs shall observe

such holiday as provided below:

Day Holiday Falls Day Holiday Observed

Saturday | Friday preceding Holiday

Sunday Monday following Holiday

Workday Workday

(b) Employees whose workdays fall on other

than Monday through Friday during the

workweek in which a holiday occurs shall

observe such holiday as provided below:

Day Holiday Falls Day Holiday Observed

Day off First workday after the day

off

Workday Workday

35.03 It shall be the desire of the parties to this

Agreement that holiday work assignments be shared

equitably among employees in a work unit. To accom-

plish this a rotational system by seniority will be estab-

lished whereby every employee within an organizational

unit will be given the opportunity to participate in holi-

day work assignments on an equitable basis insofar as the

requirements of the mission will permit and in accor-

dance with skills required. Suitable records must be

maintained by supervisors to assure that each employee

receives substantially the same consideration.

35.04 Upon request of the Union, the Employer or his

representative shall meet and consult with the Union

when developing the holiday assignment system.

[MATERIAL DELETED]

Al4

APPENDIX “C”

(PART “2”)

UNIT 2

AGREEMENT

This Agreement is made this 19th day of April, 1985,

by and between the Hawaii Government Employees’

Association, AFSCME, Local 152, AFL-CIO, hereinafter

called the Union, and the State of Hawaii including the

Board of Education and the Board of Regents of the

University of Hawaii, the City and County of Honolulu,

the County of Hawaii, the County of Maui, and the

County of Kauai, hereinafter called the Employer.

ARTICLE 1 - RECOGNITION

A. The Employer recognizes the Union as the exclu-

sive bargaining agent of the unit certified by the Hawaii

Public Employment Relations Board consisting of all

blue-collar supervisory employees employed by the State

of Hawaii including the Board of Education and the

Board of Regents of the University of Hawaii, the City

and County of Honolulu, the County of Hawaii, the

County of Maui, and the County of Kauai.

B. The term “Employee” as used in this Agreement

refers to Employees in the bargaining unit.

C. Whenever in this Agreement the masculine gen-

der is used, it shall be deemed to include the feminine

gender.

[MATERIAL DELETED]

A15

ARTICLE 33 - HOLIDAYS

A. Legal holidays shall be as provided under Sec-

tion 8-1, HRS, as amended. Such holidays are:

New Year’s Day

President’s Day

Prince Jonah Kuhio Kalanianaole Day

Good Friday

Memorial Day

King Kamehameha I Day

Independence Day :

Admission Day

Labor Day

Discoverers’ Day

Veterans’ Day

Thanksgiving Day

Christmas Day

All elections days, except primary and special elec-

tion days, in the county wherein the election is held;

Any day designated by proclamation by the Presi-

dent of the United States or by the Governor as a holiday. |

B. Observance of Holidays.

1. Employees whose workdays fall on Monday

through Friday during the workweek in which a holiday

occurs shall observe such holiday as provided below:

Day Holiday Falls Day Holiday Observed

Saturday Friday preceding holiday

Sunday Monday following holiday

Workday Workday

2. Employees whose workdays fall on other than

Monday through Friday during the workweek in which a

Al6

holiday occurs shall observe such holiday as provided

below:

Day Holiday Falls Day Holiday Observed

Day Off First workday after the day

off

Workday Workday

[MATERIAL DELETED]

A17

APPENDIX “C”

(PART “3”)

UNIT 3

AGREEMENT

This Agreement is made this 19th day of April, 1985,

by and between the Hawaii Government Employees

Association, AFSCME Local 152, AFL-CIO, hereinafter

called the Union, and the State of Hawaii, the City and

County of Honolulu, the County of Hawaii, the County of

Maui, and the County of Kauai, hereinafter called the

Employer.

ARTICLE 1 - RECOGNITION

A. The Employer recognizes the Union as the exclu-

sive bargaining agent of the unit certified by the Hawaii

Public Employment Relations Board consisting of white-

collar non-supervisory Employees employed by the State

of Hawaii, the City and County of Honolulu, the County

of Hawaii, the County of Maui, and the County of Kauai.

B. The term “Employee” as used in this agreement

refers to Employees in the bargaining unit.

C. Wherever in this Agreement the masculine gen-

der is used, it shall be deemed to include the feminine

gender.

[MATERIAL DELETED]

ARTICLE 32 - HOLIDAYS

A. Legal holidays shall be as provided under Sec-

tion 8-1, HRS, as amended. Such holidays are:

A18

New Year’s Day

President’s Day

Prince Jonah Kuhio Kalanianacle Day

Good Friday

Memorial Day

King Kamehameha | Day

Independence Day

Admission Day

Labor Day

Discoverers’ Day

Veterans’ Day

Thanksgiving Day

Christmas Day

All election days, except primary and special election

days, in the county wherein the election is held.

Any day designated by proclamation by the Presi-

dent of the United States or by the Governor as a holiday.

B. Observance of Holidays.

1. Employees whose workdays fall on Monday

through Friday during the workweek in which a holiday

occurs shall observe such holiday as provided below:

Day Holiday Falls Day Holiday Observed

Saturday Friday preceding holiday

Sunday Monday following holiday

Workday Workday

2. Employees whose workdays fall on other than

Monday through Friday during the workweek in which a

Al9

holiday occurs shall observe such holiday as provided

below:

Day Holiday Falls Day Holiday Observed

Day off First workday after the day

off

Workday Workday

[MATERIAL DELETED]

A20

APPENDIX “C”

(PART “4”)

UNIT 4

AGREEMENT

This Agreement is made this 19th day of April, 1985,

by and between the Hawaii Government Employees

Association, AFSCME Local 152, AFL-CIO, hereinafter

called the Union, and the State of Hawaii, the City and

County of Honolulu, the County of Hawaii, the County of

Maui, and the County of Kauai, hereinafter called the

Employer.

ARTICLE 1 - RECOGNITION

A. The Employer recognizes the Union as the exclu-

sive bargaining agent of the unit certified by the Hawaii

Public Employment Relations Board consisting of white-

collar supervisory Employees employed by the State of

Hawaii, the City and County of Honolulu, the County of

Hawaii, the County of Maui, and the County of Kauai.

B. The term “Employee” as used in this Agreement

refers to Employees in the bargaining unit.

C. Wherever in this Agreement the masculine gen-

der is used, it shall be deemed to include the feminine

gender.

[MATERIAL DELETED]

ARTICLE 32 - HOLIDAYS

A. Legal holidays shall be as provided under Sec-

tion 8-1, HRS, as amended. Such holidays are:

A21

New Year’s Day

Presidents’ Day

Prince Jonah Kuhio Kalanianaole Day

Good Friday

Memorial Day

King Kamehameha | Day

Independence Day

Admission Day

Labor Day

Discoverers’ Day

Veterans’ Day

Thanksgiving Day

Christmas Day

All election days, except primary and special election

days, in the county wherein the election is held;

Any day designated by proclamation by the Presi-

dent of the United States or by the Governor as a holiday.

B. Observance of Holidays.

1. Employees whose workdays fall on Monday

through Friday during the workweek in which a holiday

occurs shall observe such holiday as provided below:

Day Holiday Falls Day Holiday Cbserved

Saturday Friday preceding holiday

Sunday Monday following holiday

Workday Workday

2. Employees whose workdays fall on other than

Monday through Friday during the workweek in which a

A22

holiday occurs shall observe such holiday as provided

below:

Day Holiday Falls Day Holiday Observed

Day Off First workday after the day

off

Workday Workday

[MATERIAL DELETED]

A23

APPENDIX “C”

(PART “5”)

AGREEMENT

BETWEEN

STATE OF HAWAII

BOARD OF EDUCATION

AND

HAWAII STATE

TEACHERS ASSOCIATION

July 1, 1985-June 30, 1987

ARTICLE 1 - RECOGNITION

This Agreement entered into this Ist day of July, 1985 by

and between the State of Hawaii, Board of Education,

hereinafter called the “Employer” as defined in Section

89-2(9). Hawaii Revised Statutes, and the Hawaii State

Teachers Association, hereinafter called the “Associa-

tion.”

Pursuant to certification by the Hawaii Public Employ-

ment Relations Board in Case Number 1, the Employer

recognizes the Association for the purposes of collective

bargaining pursuant to the Hawaii Public Employment

Act, as the exclusive representative of a unit consisting of

teachers and other personnel of the Department of Edu-

cation under the same salary schedule, pursuant to Sec-

tion 297-33(d). Hawaii Revised Statutes.

EXCLUDING: Part-time teachers (less than 20 hours per

week). Substitute Teachers, Adult Education Teachers

except those on annual contract, Summer School

Teachers, Summer Schoo! Supportive Staff (Counselors,

Librarians, etc.); Special Contract Teachers (Consultants,

A24

Special Projects, Workshop Teachers, etc.); ROTC Instruc-

tors, Driver Training and Educational Instructors, Model

Cities Teachers, PL 89-10 Title 1 (not on regular teachers’

salary schedule); Language Arts Lay Readers; Non-

Teacher Athletic Coaches; Home/Hospital Instruction

Teachers (Hourly or part-time less than 20 hours per

week); Non-Teachers, Non-Athletic Activities Super-

visors; Part-time Advisors, PL 89-10 Title 1 (Drop Out

Program); Civil Defense Teachers; National Teachers

Corps Interns; Student Teachers; Vocational Home Eco-

nomics Teachers (Part-time less than 20 hours per week);

Vocational Agriculture Teachers (Part-time less than 20

hours per week).

It is understood that references to male teachers shall

include female teachers.

[MATERIAL DELETED]

ARTICLE XVI - WORK YEAR

The work year for bargaining unit members shall be as

previously established and shall be no more than one

hundred eighty (180) days: one (1) day of which shall be

without students at the beginning of the school year and

one (1) day of which shall be without students at the end

of the school year.

Bargaining unit personnel shall have one day set aside for

Teacher Institute Day.

The Employer shall not schedule nor require work to be

performed on any of the following holidays:

A25

1 Labor Day 8 New Year’s Day

2 Discovers’ Day 9 Presidents Day

3 Veterans’ Day 10 Kuhio Day

4 General Election day 11 Good Friday

5 Thanksgiving Day 12. Memorial Day

6 Day after Thanksgiving 13 Kamehameha Day

7 Christmas Day

Vacations for bargaining unit personnel shall be the day

after Thanksgiving, two (2) weeks at Christmas, one (1)

week in the Spring.

The work year for bargaining unit members shall not

extend beyond Kamehameha Day.

Employees are not required to report to work during the

winter or spring vacations or during the period begin-

ning with the ending of the teaching year in June and

ending with the beginning of the new teaching year in

September of the following school; however,

1. Employees may voluntarily report to duty

without compensation; or

2. Employees who are officially recalled to

duty by the Employer according to established

procedures and who agree to perform work

shall be compensated at the rate of 1/180 times

(x) his/her annual salary for each day worked.

Provided, however, that librarians and registrars

shall be provided extra compensation for such

work only when it exceeds the work obligation

for which they receive a pay differential.

[MATERIAL DELETED]

A26

APPENDIX “C”

(PART “6”)

UNIT 6

AGREEMENT

This Agreement is made this 19th day of April, 1985,

by and between the Hawaii Government Employees’

Association, AFSCME Local 152, AFL-CIO, hereinafter

called the Union and the State of Hawaii, Board of Educa-

tion including the Department of Education, hereinafter

called the Board.

ARTICLE 1 - RECOGNITION

The Board recognizes the Union as the exclusive

bargaining agent of a unit consisting of all educational

officers employed by the Board as certified by the Hawaii

Public Employment Relations Board pursuant to Chapter

89, Hawaii Revised Statutes.

ARTICLE 2 - CONFLICT

If there is any conflict between the provisions of this

Agreement and any of the rules and regulations of the

Board, other personnel regulations applicable to educa-

tional officers, or any contracts between the Board and

educational officers, the terms of this Agreement shall

prevail.

[MATERIAL DELETED]

ARTICLE 3 - MAINTENANCE OF RIGHTS AND PRIVI-

LEGES

A27

A. Except as modified herein, educational officers

shall retain all rights, benefits, and privileges pertaining

to their conditions of employment contained in the

School Code at the time of the execution of this Agree-

ment.

B. Subject to the foregoing paragraph, nothing con-

tained herein shall be interpreted as interfering with the

Board’s right to make, amend, revise, or delete any por-

tion of the School Code; provided, however, that the

Union shall be consulted on any changes to be made.

A28

APPENDIX “C”

(PART “7”)

AGREEMENT

This Agreement is made this 19th day of April 1985 by

and between the State of Hawaii and the Board of

Regents of the University of Hawaii, hereinafter called

the Employer or Public Employer, as defined in Section

89-2, H.R.S., and the University of Hawaii Professional

Assembly, hereinafter called the Union.

ARTICLE I, RECOGNITION

The Employer recognizes the Union as the exclusive rep-

resentative of Collective Bargaining Unit 7, as certified by

the Hawaii Public Employment Relations Board. The pub-

lic employees composing the unit are hereinafter referred

to as Faculty Members or Faculty.

[MATERIAL DELETED]

F. HOLIDAYS

1. Legal holidays shall be observed as provided

under Section 8-1, H.R.S., as amended. Such holli-

days are:

New Year's Day ........:.. First day of January

Presidents’ Day...... Third Monday in February

| 6 Seer ee Twenty-sixth day of March

Good Friday .. .Friday preceding Easter Sunday

Memorial Day ............ Last Monday in May

Kamehameha Day......... Eleventh day of June

Independence Day........... Fourth day of July

Admission Day......... Third Friday in August

Laver Day.......... First Monday in September

A29

Discoverers’ Day....Second Monday in October

Veterans’ Day....... Eleventh day of November

Thanksgiving Day Fourth Thursday in November

Christmas Day ...Twenty-fifth day of December

All election days, except primary and special

election days, in the county wherein the election

is held.

Any day designated by proclamation by the Pres-

ident of the United States or by the Governor as a

holiday.

If any of the State’s legal holidays falls on Sun-

day, the following Monday shall be observed as a

holiday. If such a day falls on a Saturday, the

preceding Friday shall be observed as a holiday.

Holidays shall be credited toward the accrual of

vacation and sick leave.

[MATERIAL DELETED]

A30

APPENDIX “C”

(PART “8”)

UNIT 09

AGREEMENT

This Agreement is made this 19th day of April, 1985,

by and between the Hawaii Government Employees

Association, AFSCME Local 152, AFL-CIO, hereinafter

called the Union, and the State of Hawaii, the City and

County of Honolulu, the County of Hawaii, the County of

Maui, and the County of Kauai, hereinafter called the

Employer.

ARTICLE 1 - RECOGNITION

A. The Employer recognizes the Union as the exclu-

sive bargaining agent of the unit certified by the Hawaii

Public Employment Relations Board consisting of Regis-

tered Professional Nurses employed by the State of

Hawaii, the City and County of Honolulu, the County of

Hawaii, the County of Maui, and the County of Kauai.

B. The term “Employee” as used in this Agreement

refers to Employees in the bargaining unit.

C. Whenever in this Agreement the feminine gen-

der is used, it shall be deemed to include the masculine

gender.

[MATERIAL DELETED]

ARTICLE 40 - HOLIDAYS

A. Legal holidays shall be as provided under Sec-

tion 8-1, HRS, as amended. Such holidays are:

A31

New Year’s Day

Presidents’ Day

Prince Jonah Kuhio Kalanianaole Day

Good Friday

Memorial Day

King Kamehameha I Day

Independence Day

Admission Day

Labor Day

Discoverers’ Day

Veterans’ Day

Thanksgiving Day

Christmas Day

All election days, except primary and special election

days, in the county wherein the election is held;

Any day designated by proclamation by the Presi-

dent of the United States or by the Governor as a holiday.

B. Observance of Holidays

1. Employees whose workdays fall on Monday

through Friday during the work week in which a holiday

occurs shall observe such holiday as provided below:

Day Holiday Falls Day Holiday Observed

Saturday Friday preceding holiday

Sunday Monday following holiday

Workday Workday

2. Employees whose workdays fall on other than

Monday through Friday during the work week in which a

holiday occurs shall observe such holiday as provided

below:

Day Holiday Falls Day Holiday Observed

Day Off First workday after the

Workday day off Workday

[MATERIAL DELETED]

A32

APPENDIX “C”

{PART “9”)

UNIT 10

AGREEMENT

Between

STATE OF HAWAII

CITY & COUNTY OF HONOLULU

COUNTY OF HAWAII

COUNTY OF MAUI

COUNTY OF KAUAI

and

UNITED PUBLIC WORKERS

LOCAL, 646

AMERICAN FEDERATION OF

STATE, COUNTY & MUNICIPAL EMPLOYEES,

AFL-CIO

BLUE COLLAR NON-SUPERVISORY

BARGAINING UNIT

JULY 1, 1985 - JUNE 30, 1987

THIS AGREEMENT is entered into this 29th day of

March, 1985 by and between the STATE OF HAWAII, the

CITY AND COUNTY OF HONOLULU, the COUNTY OF

HAWAII, the COUNTY OF MAUI, AND THE COUNTY

OF KAUAI, hereinafter collectively called the

EMPLOYER, and the UNITED PUBLIC WORKERS,

LOCAL 646, AMERICAN FEDERATION OF STATE,

COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO,

hereinafter called the UNION.

A33

Section 1. RECOGNITION.

1.01 The Employer recognizes the Union as the exclu-

sive bargaining representative for those public employees

in the nonprofessional hospital and institutional workers’

unit, non-supervisory and supervisory.

This unit consists of employees in such areas as

health care, corrections, and emergency medical services

employed at hospitals, correctional facilities, detention

facilities, emergency medical service units, mental health

clinics, and community health clinics.

[MATERIAL DELETED]

Section 35. HOLIDAYS.

35.01 Legal holidays shall be as provided under Sec-

tion 8-1, Hawaii Revised Statutes, as amended. Such holi-

days are:

New Year’s Day — First day of January

Presidents’ Day — Third Monday in February

Prince Jonah Kuhio

Kalanianaole Day - Twenty-sixth day of March

Good Friday - Friday preceding Easter Sunday

Memorial Day

Last Monday in May

King Kamehameha |

Day

Eleventh day of June

Independence Day Fourth day of July

Admission Day

Labor Day

Third Friday in August

First Monday in September

A34

Discoverers’ Day - - Second Monday in October

Veterans’ Day - Eleventh Day of November

Thanksgiving Day - Fourth Thursday in November

Christmas Day —- Twenty-fifth day of December

All election days, except primary and special election

days, in the county wherein the election is held.

Any day designated by proclamation by the Presi-

dent of the United States or by the Governor as a holiday.

35.02 Observance of Holiday.

a. Employees whose workdays fall on Monday

through Friday during the workweek in

which a holiday occurs shall observe such

holiday as provided below:

Day Holiday Falls Day Holiday Observed

Saturday Friday preceding Holiday

Sunday Monday following Holiday

Workday Workday

b. Employees whose workdays fall on other

than Monday through Friday during the

workweek in which a holiday occurs shall

observe such holiday as provided below:

Day Holiday Falls Day Holiday Observed

Dayoff First workday after the dayoff

Workday Workday

35.03 it shall be the desire of the parties to this

Agreement that holiday work assignments be shared

equitably among employees in a work unit. To accom-

plish this a rotational system by seniority will be estab-

lished whereby every employee within an organizational

iiss...

A35

unit will be given the opportunity to participate in holi-

day work assignments on an equitable basis insofar as the

requirements of the mission will permit and in accor-

dance with skills required. Suitable records must be

maintained by supervisors to assure that each employee

receives substantially the same consideration.

35.04 Upon request of the Union, the Employer or his

representative shall meet and consult with the Union

when developing the holiday assignment system.

[MATERIAL DELETED]

A36

APPENDIX “C”

(PART “10”)

AGREEMENT

Hawaii Fire Fighters Association

IAFF Local Union No. 1463

AGREEMENT

This agreement is made and entered into this __ day

of __, 1983, by and between the State of Hawaii, the City

and County of Honolulu and the County of Hawaii, the

County of Maui and the County of Kauai, hereinafter

referred to as the Employer, and the Hawaii Fire Fighters

Association. Local 1463, IAFF, AFL-CIO, hereinafter

referred to as the Union.

This Agreement covers all employees for whom the

Union is recognized as exclusive bargaining representa-

tive pursuant to Section 1: Recognition.

It is the purpose of this Agreement to achieve and

maintain harmonious and cooperative relations between

the Employer and the Union, to provide for equitable and

peaceful adjustment of differences which may arise and

to establish proper standards of wages, hours, and other

terms and conditions of employments.

Section 1. RECOGNITION.

The Employer recognizes the Union as the certified

exclusive bargaining representative of all firefighters,

including supervisory personnel, of the State and its

political subdivisions whose principal duties are to pre-

vent and fight fires, except for officers and employees

aie

hr Rta Ail RAL Rie. Nast bp aie ie

MMi.

A37

who are excluded or may be excluded from the bargain-

ing unit by law and the Hawaii Public Employment Rela-

tions Board.

The Employer shall provide the Union with a roster

of its employees by company or unit assignment and

shall maintain its currency. The Union shall provide the

Employer with a list of its officers, stewards, and autho-

rized representatives and maintain its currency.

[MATERIAL DELETED]

Section 24. HOLIDAYS.

A. Holidays shall be as provided under Section 8-1.

HRS as amended. Such holidays are:

e New Year’s Day

President’s Day

Prince Jonah Kuhio Kalanianaole Day

Good Friday

Memorial Day

King Kamehameha Day

Independence Day

Admission Day

Labor Day

Thanksgiving Day

Christmas Day

All election days, except primary and special

election days, in the county wherein the elec-

tion is held.

e Any day designated by proclamation by the

President of the United States or designated

by proclamation by the Governor of the State

as a holiday.

A38

B. Observance of holidays

(1)

(2)

(3)

Employees whose workdays fall on Monday

through Friday during the workweek in

which a holiday occurs shall observe such

holiday as provided below:

Day Holiday Falls Day Holiday

Observed

Saturday Friday preceding

holiday

Sunday Monday following

holiday

Workday Workday

Employees whose workdays fall on other

than Monday through Friday during the

workweek in which a holiday occurs shall

observe such holiday as provided below:

Day Holiday Falls Day Holiday

Observed

Day off First workday after

the day off

Workday Workday

Whenever an employee is required to work

on his designated holiday he shall be paid,

in addition to his straight time pay at the

rate of one and one-half (1 1/2) times his

hourly rate of pay for all hours worked on

the holiday; provided that whenever the

major portion of a shift falls on a holiday,

the entire shift shall be considered -holiday

work.

A39

C. The following provisions shall apply in the case

of employees assigned to 24-hour shifts, helicop-

ter duty or any work schedule in excess of 40

hours per week:

(1)

(2)

If a holiday falls on a non-work day, the

next scheduled work day following such

non-work day shall be held and considered

to be a holiday for such employee in lieu of

such day which so occurs on such non-work

day.

(a) A holiday falls on a work day if the

major portion of a scheduled shift falls

on the holiday.

(b) A holiday falls on a non-work day if

the major portion of a scheduled shift

does not fall on the holiday.

Holiday Premium Pay - Subject to the

approval of the respective legislative bodies,

effective July 1, 1977, whenever an

employee performs scheduled work on his

designated holiday, he shall be paid in addi-

tion to his straight time pay, at the rate of

one and one-half (1 1/2) times his hourly

rate of pay which shall be based on 40 hours

per week for all hours worked on the holi-

day up to a maximum of eight (8) hours;

provided that when overtime work is per-

formed by an employee on his designated

holiday, he shall be paid at the appropriate

Overtime rate for such overtime work.

D. All employees whose work schedule permit shall

be entitled to have the holiday or the shift for

that holiday off without loss of pay or benefits.

For purposes of determining overtime, holidays

A40

not worked as provided herein shall be counted

as time worked.

[MATERIAL DELETED]

A4l1

APPENDIX “C”

(PART “11”)

UNIT 13

AGREEMENT

This Agreement is made this 19th day of April, 1985,

by and between the Hawaii Government Employees

Association, AFSCME, Local 152, AFL-CIO, hereinafter

called the Union, and the State of Hawaii, the City and

County of Honolulu, the County of Hawaii, the County of

Maui, and the County of Kauai, hereinafter called the

Employer.

ARTICLE 1 - RECOGNITION

A. The Employer recognizes the Union as the exclu-

sive bargaining agent of the unit certified by the Hawaii

Public Employment Relations Board consisting of profes-

sional and scientific employees, other than registered

professional nurses employed by the State of Hawaii, the

City and County of Honolulu, the County of Hawaii, the

County Maui, and the County of Kauai.

B. The term “Employee” as used in this Agreement

refers to Employees in the bargaining unit.

C. Whenever in this Agreement the masculine gen-

der is used, it shall be deemed to include the feminine

gender.

[MATERIAL DELETED]

A42

ARTICLE 34 - HOLIDAYS

A. Legal holidays shall be as provided under Sec-

tion 8-1, HRS, as amended. For informational purposes,

such holidays are:

New Year’s Day, the first day of January

President’s Day, the third Monday in February

Prince Jonah Kuhio Kalanianaole Day, the

twenty-sixth day of March

Good Friday, the Friday preceding Easter Sun-

day

Memorial Day, the last Monday in May

King Kamehameha I Day, the e’eventh day of

June

Independence Day, the fourth day of July

Admission Day, the third Friday in August

Labor Day, the first Monday in September

Discoverers’ Day, the second Monday in Octo-

ber

Veterans’ Day, the eleventh day in November

Thanksgiving Day, the fourth Thursday in

November

Christmas Day, the twenty-fifth day of Decem-

ber

All election days, except primary and special election

days, in the county wherein the election is held.

Any day designated by proclamation by the Presi-

dent of the United States or by the Governor as a holiday.

Mich broke tt hin te tite aR Aiea aaa EE tata hte.

Ail ace idd SLID ito PT cn ord

A43

B. Observance of Holidays.

1. Employees whose workdays fall on Monday

through Friday during the workweek in which a holiday

occurs shall observe such holiday as provided below:

Day Holiday Falls Day Holiday Observed

Saturday Friday preceding holiday

Sunday Monday following holiday

Workday Workday

2. Employees whose workdays fall on other than

Monday through Friday during the workweek in which a

holiday occurs shall observe such holiday as provided

below:

Day Holiday Falls Day Holiday Observed

Day off First workday after the day

off

Workday Workday

[MATERIAL DELETED]

that

A44

APPENDIX “D”

Hawaii Revised Statutes § 1-29 (1985) provides in

relevant part that

§ 1-29 Computation of Time. The time in which

any act provided by law is to be done is com-

puted by excluding the first day and including

the last, unless the last day is a Sunday or

holiday and then it is also excluded.

Hawaii Revised Statutes § 80-1 (1985) provides

§ 80-1 Office hours. Offices of the State and coun-

ties and independent boards and commissions

thereof shall open for the transaction of public

business between the hours of 7:45 a.m. and 4:30

p-m., Monday to Friday, inclusive. By executive

order, the governor may modify the hours of

business offices, other agencies and schools in

order to meet a demonstrated need for public

services, to provide for the efficient operation of

business, to encourage energy conservation, and

to reduce traffic congestion. Offices shall be

closed on Saturday, except those which public

convenience require shall remain open from 8

a.m. to noon on Saturday. Offices open on Satur-

day may be staffed with a skeleton force. A

lunch period of forty-five minutes will be

allowed all governmental personnel, which shall

not constitute working time under this section.

that

Haw. Rev. Stat. § 89-9 (1985 and Supp. 1991) provides

§ 89-9 Scope of negotiations. (a) The

employer and the exclusive representative shall

meet at reasonable times, including meetings in

‘

Wt Padlaell i

A45

advance of the employer’s budget-making pro-

cess, and shall negotiate in good faith with

respect to wages, hours, the number of incre-

mental and longevity steps and movement

between steps within the salary rage, the

amounts of contributions by the State and

respective counties to the Hawaii public

employees health fund to the extent allowed in

subsection (e), and other terms and conditions

of employment which are subject to negotiations

under this chapter and which are to be embod-

ied in a written agreement, or any question aris-

ing thereunder, but such obligation does not

compel either party to agree to a proposal or

make a concession.

(b) The employer or the exclusive repre-

sentative desiring to initiate negotiations shall

notify the other in writing, setting forth the time

and place of the meeting desired and generally

the nature of the business to be discussed, and

shall mail the notice by certified mail to the last

known address of the other party sufficiently in

advance of the meeting.

all matters affecting employee relations, includ-

ing those that are, or may be, the subject of a

regulation promulgated by the employer or any

personnel director, are subject to consultation

with the exclusive representatives prior to effec-

ting changes in any major policy affecting

employee relations.

(d) Excluded from the subjects of negotia-

tions are matters of classification and

reclassification, benefits of but not contributions

to the Hawaii public employees health fund,

retirement benefits, and the salary ranges now

A46

provided by law; provided that the number of

incremental and longevity steps, the amount of

wages to be paid in each range and step, and

movement between steps, within the salary

range shall be negotiable. The employer and the

exclusive representative shall not agree to any

proposal which would be inconsistent with

merit principles or the principle of equal pay for

equal work pursuant to sections 76-1, 76-2,

77-31, and 77-33, or which would interfere with

the rights of a public employer to (1) direct

employees; (2) determine qualification, stan-

dards for work, the nature and contents of

examinations, hire, promote, transfer, assign,

and retain employees in positions and suspend,

demote, discharge, or take other disciplinary

action against employees for proper cause; (3)

relieve an employee from duties because of lack

of work or other legitimate reason; (4) maintain

efficiency of government operations; (5) deter-

mine methods, means, and personnel by which

the employer’s operations are to be conducted;

and take such actions as may be necessary to

carry out the missions of the employer in cases

of emergencies; provided that the employer and

the exclusive representative may negotiate pro-

cedures governing the promotion and transfer

of employees to positions within a bargaining

unit, procedures governing the suspension,

demotion, discharge or other disciplinary

actions taken against employees, and pro-

cedures governing the lay off of employees; pro-

vided further that violations of the procedures

so negotiated may be the subject of a grievance

process agreed to by the employer and the

exclusive representative.

A47

(e) Negotiations relating to contributions

to the Hawaii public employees health fund

shall be for the purpose of agreeing upon the

amounts which the State and counties shall con-

tribute under section 87-4, toward the payment

of the costs for a health benefits plan, as defined

in section 87-1(8), and group life insurance ben-

efits, and the parties shall not be bound by the

amounts contributed under prior agreements;

provided that section 89-11 for the resolution of

disputes by way of fact finding or arbitration

shall not be available to resolve impasses or

disputes relating to the amounts the State and

counties shall contribute to the Hawaii public

employees health fund. [am L 1986, c 156, § 1;

am L 1987, c 27, § 4; am L 1988, c 399, § 4]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.