Ross v. Stouffer Hotel Co. (Hawai'i) Ltd.

Harvey ROSS, Plaintiff-Appellant, J. (HAW

STOUFFER HOTEL COMPANY

AI‘I) LTD., INC., Stouffer Waio d/b/a Resort; Perry, Glenn hai in his official

capacity Manager as General Resort; Furtado,

Waiohai Carol her capacity

official as Director of Person Resort,

nel of Stouffer Waiohai Defen 1-10;

dants-Appellees Does John 1-10;

Jane Does Doe Entities Business

1-10; Corporations 1-10; Doe and Doe

Partnerships Defendants.

No. 16486.

Supreme Court of Hawai'i.

Aug. (Elizabeth Fujiwara Tagupa Jubin

William him, Fujiwara on the T. with and Ronald Honolulu, briefs), plaintiff-appellant. for (Robert Perry Katz Confalone S. W. Jossem, brief; Torkildson, Katz, him on the Fonseca, Jaffe, Hetherington), Moore & Honolulu, defendants-appellees. for brief, Honolulu, Ishihara, on the John Rights Com’n. amicus curiae Hawai'i Civil KLEIN, MOON, C.J., and Before LEVINSON, RAMIL, JJ. NAKAYAMA and NAKAYAMA, Justice. Harvey an

Plaintiff-appellant J. Ross filed defendant-appellee Stouffer against action (Hawai'i) (Stouffer)1 in Company Ltd. Hotel Circuit, of the Fifth State the Circuit Court Hawai'i, discharged him Stouffer after massage therapist at position as a from (the Resort), is- on the the Waiohai Resort Kaua’i, because of his status. land of discharged, Ross was At the time he was Treffry, who was the married to Viviana massage therapist at the Resort. principal pursuant poli- to its discharged Ross cy persons related blood prohibiting working depart- same marriage from (the policy). primary no-relatives ment (and later his complaint of Ross’s claim complaint) en- was that Stouffer’s amended policy violated no-relatives forcement of its (HRS) § 378-2 Revised Statutes Hawai'i (1985).2 Following procedural a series unlawful; herein, Discriminatory practices made of- defendants- As refers to used Ltd., (Hawai'i) Company appellees dis- Stouffer Hotel It shall be an unlawful fenses defined. Resort, Perry, general manager Glenn criminatory practice: Furtado, personnel. Carol director (1985) provided pertinent 2. HRS part: ed[,] prior appeals

skirmishes days and two to this we will allow additional 60 court, today granted you to decide which summary the circuit court avenue opportunities. will offer the An appli- best judgment in favor Stouffer on six of the cation will qualifi- for transfer be based on seven claims included Ross’s amended cations position. for the the event that complaint judgment and entered final you you are unable to decide which one of pursuant those claims to Hawai'i Rules of resign, management will transfer or bewill (HRCP) 54(b) (1991). Civil Procedure Ross obligated employment to terminate the timely appeal. filed a following For the rea- employee[;] the less senior in this case this sons, summary judgment affirmed Harvey. would be part and part. vacated in Ross received the memo on October Treffry Because neither he nor had I. BACKGROUND resigned transferred or the December August 1986, In Amfac Hotels and Re- deadline, discharged. Ross (Amfac Hotels) sorts, Inc. hired Ross as a On March complaint Ross filed a Resort, massage therapist at the which it with the division Depart- enforcement of the then operated. owned and Amfac Hotels ment of Labor and Industrial Relations Treffry, also hired with whom Ross had been (DLIR), asserting he that had “been discrim- living year, for principal almost a as the against inated on basis of [his] massage therapist. Both worked the Re- right-to-sue status.” He received notice Po’ipu sort’s Beach Fitness Center. from the DLIR two about weeks later. Ross August 1987, In Treffry and married. complaint May filed a in the circuit court on later, couple A acquired weeks Stouffer 17, 1988, asserting wrongful claims for: dis- the Resort from Amfac Hotels and became (count charge I); violation of 378-2 Ross’s Treffry’s employer. and (count discharge public policy violation II); negligent intentional or infliction of emo- At September the end of Ross and (counts IV); tional distress III and puni- and Treffry became aware of Stouffer’s no-rela- (count V). damages tive complaint Ross’s policy. early tives In October was later amended to include a federal claim Treffry Perry and met with and Furtado. At (count VI) under 42 U.S.C. and meeting, that policy the no-relatives was dis- (count implied claim for breach of contract cussed, Perry agreed and and Furtado VII). eventually The case was admitted corporate talk to headquarters Stouffer’s the Court Program, Annexed Arbitration about whether the would be enforced. pending where it was when the for motions Stouffer decided policy. to enforce the summary judgment subject are the 16,1987, Perry On October sent a memo to appeal this made. were Treffry, Ross and part: stated in Following the addition the federal statu- In meeting our on October 1987 we (count tory VI), claim the case was removed you discussed the memo had received re- to the United States District Court for the lating to employment of immediate District of Hawai’i. The federal district family department. in the same We have court dismissed federal claim re- your consideration, taken comments into manded the case to the circuit court for discussed the situation our decision is adjudication remaining state claims. application enforce pol- consistent of our (Hawai'i) Ltd,., Ross v. Hotel Co. icy. you (D.Haw. This means one of 21, 1989) (order will April need No. 89-00049 apply to either granting for transfer to judgment pleadings another on federal department resign. cause remanding of action and to circuit court). your Because we specialty understand as massage therapists may make a July following transi- the remand from tion position complicat- court, to another more the federal district the circuit court any employer discharge For to ... ... marital status[.]

employment ... individual ... because of denying the motion to count VII granting motion for filed an order Stouffer’s (breach contract).4 implied remaining “each summary judgment on complaint. Ross count” of Ross’s amended later, month Stouffer moved About a September appealed this court. On summary judgment on count the HRS appeal lack dismissed the claim, damages and to strike certain because, although jurisdiction the order primarily argued claims. Stouffer summary it granting judgment indicated that he bringing I because barred from count count,” remaining applied to “each it failed to timely complaint did not file expressly of the counts dismiss several argued Ross’s DLIR. also complaint. therefore Ross’s amended We compensatory punitive dam- claims for it final appealable ruled that was not an be- I should be stricken ages under count order. under were available remedies cause neither 29, 1990, (1985). the circuit court en- On October 378-5 summary granting tered an amended order 27, 1992, August court filed On circuit judgment in all remain- favor on Stouffer and, finding granting an order the motion appealed to ing again Ross this claims. delay, just for there was no reason 1991, 29, August we issued an court. On in judgment Stouffer’s favor entered final I, opinion addressing only v. count Ross VI, pursuant to through I HRCP counts Ltd., (Hawai'i) Inc., Company Hotel Stouffer (The claim, 54(b). implied breach of contract 350, 302, 72 Haw. 816 P.2d reconsideration remains.) VII, timely filed Ross a count (1991) 616, denied, 72 Haw. 841 P.2d 1074 appeal. (Ross I). it fit into I held unless exceptions in HRS 378-3 one of II. STANDARD OF REVIEW (1985),3 pursuant discharge of Ross Stouffer’s summary judgment an award of Review of policy to no-relatives violated HRS 378- applied under the same standard is 2, against it Ross be- because discriminated there appropriate circuit court and where 355, 72 Haw. at cause of his marital status. genuine any material fact no issue as Finding the 816 P.2d at 304. record incom- judgment moving party is entitled to and the any exceptions plete as to whether Utsunomiya Enter as a matter of law. S. applied, this court vacated the Club, Country prises, Inc. v. Moomuku judgment the ease to the cir- and remanded 961, 480, 497, 951, reconsider Haw. 866 P.2d for consistent proceedings cuit further denied, 247, 76 Hawai'i 871 P.2d ation opinion. Id. (1994). remand, Following par- moved Stouffer III. DISCUSSION summary judgment through II tial on counts VII, arguing the claims includ- primarily A. I Count either barred ed in those counts were Ross I 1. Reconsideration of 1992, factually unsupported. On June initially us to reconsider granting asks an order circuit court entered I in Ross through majority’s overrule decision counts II VI Stouffer’s motion event, any In things, pro- dismissal of count VI. Among court’s 3. HRS 378-3 court, following Chapter the federal district nothing remand from in Part of HRS vided establishing en prevented employer specifically bona dismissed and circuit court an qualifications discharging occupational count judgment in Stouffer’s favor on fide final tered employee his or her assigned for reasons related to dismissal VI. Because has given perform job. ability point appeal and has as a of error on of count VI completely claim either failed mention that briefs, has opening reply hold that he summary1 why 4. Stouffer moved It is unclear argument improp VI was that count waived VI, judgment that count was on count Appellate erly Pro Hawai'i Rules dismissed. prejudice the federal district dismissed with 28(b)(7) (1993); (HRAP) 28(b)(4) see cedure supra at 879 P.2d court. See Haw.App. Corp., Racquetball (and Ross) v. Courthouse Azer apparently believed that VI, 852 P.2d 81 n. reconsider 539 n. addition to the federal count claim, - -, denied, Haw.App. ation the Hawai'i also claim under asserted Constitution, survived the federal district because, argues, it legislature’s decision was based think the failure overrule analysis. on incorrect facts and despite having years well over two so, majority’s do vindicates the construction argument previ- Stouffer reiterates an it Dannenberg, of HRS 378-2. See State ously made its motion to reconsider Ross (‘Vhere 74 Haw. 837 P.2d points majority’s opinion I. It out that the legislature in response fails to act to our incorrectly IRoss stated that Ross and Tref- statutory interpretation, consequence fry August year were married over a statutory interpretation that the of the court before Stouffer decided to enforce its no- approval must be considered to have the tacit policy. relatives 72 Haw. at legisla and the effect of fact, the two were in Au- married — tion.”), reconsideration Haw. gust approximately two months before —, (1992); Gorospe 843 P.2d accord Treffry Stouffer informed Ross and of its Matsui, policy. decision to enforce the Based on this (1991); Co., Supply In re Marine & Pacific mistake, majority stated: 572, 579-80, year [invocation of the after (1974); Burns, Honolulu Star Bulletin v. Treffry] [Ross had entered into a mar- relationship ital left them with a Hobson’s giving choice of one up making of them either his In charge holding its that the employment, or her seeking “judicial or their I legislation,” Ross amounts to the divorce, continuing together and to live dissent remains wedded to the notion that being employed and in their chosen occu- the definition of marital status contained in pation. § 378-1 being HRS state of —“the being married single” unambiguously Although Id. at 816 P.2d at regret- — permits employers against to discriminate table, analysis the error affected neither the persons long married so as the discrimination I, nor the result of Ross as this indicat- “identity occupation is based on the and of a ed when we denied Stouffer’s motion for person’s spouse,” dissent at solely and not reconsideration. 72 Haw. 841 P.2d 1074. married, regard- on the fact that he or she is I, that, In majority by Ross the concluded less of to whom. enforcing policy, its no-relatives Stouffer vio- 378-2(1), § discharged lated HRS it extremely reading That restrictive of the Ross “because of ... [his] marital status.” ignores simple statute the fact of life that Although 72 Haw. at 816 P.2d at 304. marries, person always when a it is to a majority mistakenly year’s noted that a particular person particular “identity.” with a lapse Treffry’s marriage between Ross’s and “marry” sense, generic One does not in some and Stouffer’s decision to enforce no- specific Thus, but person. marries a policy relatives made their “Hobson’s choice” (and “identity” spouse of one’s all of his or especially painful, point that was immaterial attributes, including her occupa- his or her majority’s to the analysis holding. and The tion) implicitly subsumed within the defini- discharged fact that Stouffer Ross because of “being tion of married.” The cannot two be regardless his marital of when he status — separated. sense, therefore, It makes no to achieved that status —was the sole determi- conclude, does, as the dissent that an em- native in Ross I. .factor ployer who discriminates based on the “iden- Notwithstanding the tity occupation” minor factual error in person’s spouse and of a that, holding we stand its discriminating against “as a not also person law, policy matter of terminating ... of because he or employer she is married. An persons marry persons working who can’t do one without the other. other- Stated department wise, definition, the same no-spouse policy, by violates HRS ap- unless the plies only termination falls within one of persons. to the class of married exceptions Although Consequently, 378-3.” Id. employer discharges when an Stouffer argue employee pursuant dissent to policy, to such a continue it interpretation that that necessarily is at odds with what discriminates “because of ... they perceive intent, employee’s] [the marital statusf.]” HRS noted, discriminatory prohibited con- The facts of this case make the defines 378-2. very places duct broad terms point. employer justify prac- on the burden dispute no- does not that under its tices. policy, Ross not have been relatives our on discharged Treffry, but The dissent also overstates reliance had he married I. single legislature’s con- failure to overrule Ross had instead chosen to remain 470-474, living The at 879 P.2d at 1053-1057. her out of wedlock. Dissent tinue with because, holding in Ross I stand triggered because Ross chose We indicates, we marry Treffry. the above believe The event that caused discussion therefore, discharged, based a correct construction of the to be was the it was status, is, has not change in marital statute. The fact statute, despite having at being single” ... change from his “state of acted amend (and merely cohabiting opportunities to do so the last Treffry), HRS least two with (and years, n. being three id. his “state married” see indication, although ad- continuing Treffry). surely live Id. 1056 is some Grant- agrees ed, mittedly proof, not conclusive it “identity occupation” of Ross’s majority’s construction contributing of his with spouse also cause Dannenberg, That, 378-2. See 74 Haw. at however, discharge. does not diminish status, he the fact but for Ross’s marital Unquestionably,

would not have been fired. sum, contrary charge to the dissent’s then, discharged Ross “because of appropriate our imposing that we view ... [his] status[.]” 378-2. disregard legislature’s public policy in acknowledge disposi- dissent fails to intent, we convinced that Stouffer’s remain fact.5 tive applied policy as to Ross violates no-relatives purpose HRS plain language and of the The dissent overstates the effect of the § the within unless termination falls holding completely in I. It does not exceptions § of the HRS 378-3. one policies.” Dissent “outlaw no-relatives Thus, regardless of we believe that whether Instead, simply 1052. it of the amounts to construction statute our that, law, policy the of “as a matter of holds policy, good public or bad constrained terminating marry per- persons who holding I. To do reaffirm the to department working in the same vio- sons is, adopt dissent’s con- the otherwise —that § the termination lates HRS 378-2 unless of the statute —would amount struction exceptions the HRS within one falls judicial nothing legislation. more than § 816 P.2d at 304 378-3.” 72 Haw. added). therefore, (emphasis policies, Such timely his administrative filed employer legitimate, but the has can be DLIR complaint with the they are. That is proving that burden 378^4(c) (1985), § was in effect purpose and de- HRS with the overall consistent 378, which, filed his administrative com- as at the time Ross Chapter of Part I of HRS sign occupation” per- “identity married fails to into account how The dissent also take be, True, interpretation might easy statute, policy under of the spouse. it would such be chal- a son’s employer for an to circumvent making lenged pretextual, as but the burden of against prohibition § discrimination 378-2's showing presumably a would fall on such instance, em- on status. For an based clearly contrary employee. to the That would ployer who did not want to hire married Chapter purposes I of HRS and structure of Part persons practice the dissent acknowl- —a discriminatory prohibited which defines edges §HRS 378-2—could accom- would violate broadly places terms and practices inclusive by devising plish objective a employer prove one of the burden on against persons spouses whose discriminated applies. § exceptions set forth in HRS 378-3 characteristics, e.g., very some common met Moreover, circumventing employers bent twelve tall and were were less than feet undoubtedly no-spouse § craft HRS 378-2 could employed by NASA astronauts. Under obviously transparent ex- policies than the less view, policy, a which would effec- such dissent’s tively preclude above, making it for example cited difficult treme virtually every hiring mar- policies were plaintiffs to that such demonstrate pass person, under HRS muster ried pretextual. of the § because it cast terms DLIR, plaint provided precondition a to a civil suit under HRS “[n]o with the agree premise. § expiration 378-2. We with that complaint shall be filed after the 378-5(e)(l) (2) (1985), § days upon & which were ninety after the date which the discharged discriminatory effect when Ross was and when alleged practice oc- unlawful he filed his administrative and circuit court curred.”6 The circuit court concluded that complaints, respectively empowered asserting a claim un- Ross was barred right upon timely § DLIR to “issue a to sue written der HRS 378-2 because he failed to request required complainant” of the complaint file his with the DLIR. “complainant” bring civil action his her argues that the circuit court cor- Stouffer ninety days receiving a notice of within ninety-day period rectly concluded that the right logical implication to sue. The complaint file his with the DLIR Ross to legislature’s decision to authorize the DLIR 20,1987. primari- commenced on October It right to sue is that it was a to issue a ly in an action for contends unlawful bringing precondition to a civil action for 378-2(1), discharge the “al- under HRS 378-2; not, if it violation HRS were discriminatory practice leged unlawful oc- power right to sue would have issue is, filing the time for a com- cur[s]” —that meaningless. Because a “com- been plaint begins the DLIR run —when sue, plainant” request right to could employee given clear notice that 378-4(c) prohibited filing because HRS employment her will be terminated. complaint ninety days of a more than after case, contends, present that oc- alleged discriminatory practice unlawful curred on October when Ross re- occurred, necessarily it follows that the time- informing Perry’s memo him that ceived ly filing complaint of an administrative was a intended to enforce its no-relatives precondition to a civil suit. discharged policy and that Ross would be Treffry unless either he or transferred to essence, legal Reduced to its department resigned. another So inter- whether, question before us is in an action preted, comply Ross failed to with HRS discharge unlawful violation of HRS 378-4(c), 14,1988 his March DLIR 378-2(1), “alleged discriminatory prac complaint fifty-six days filed would have been occur[s],” 378-4(c), tice when an em too late. ployee receives notice that he or she will be discharged actually or when he or she is Ross, hand, argues on the other that the discharged. apparently The circuit court 15,1987, operative date is December the date triggers concluded that notification HRS actually employment. he from was dismissed 378-4(c)’s statutory filing period. § The con asserts that his claim is based on his He question struction of a statute is of law discharge, not on Stouffer’s decision en- this court de novo. Richard reviews policy, if that deci- force its no-relatives even Honolulu, City County son v. discharge likely. sion made his eventual He Hawai'i “alleged therefore contends that the unlawful reconsideration 76 Hawai'i discriminatory practice” did not “occur” until (1994). actually employment terminated his Assuming on December the validi- urges us construe HRS ty argument, complaint of Ross’s his DLIR 378-4(c) § in accord with Delaware State timely exactly ninety was because it was filed Ricks, College v. 449 U.S. 101 S.Ct. days actually discharged. after he was 66 L.Ed.2d 431 and Chardon v. Fer nandez, initially underlying prem- note that the 454 U.S. 102 S.Ct. 70 L.Ed.2d We curiam), argument (per ise of Stouffer’s and the circuit and a line of federal timely filing employment ruling court’s is that the of an and state discrimination cases complaint essentially holding period with the DLIR was that the time administrative Commission”) ("Civil Rights Chapter Rights [with Commission] 6. HRS shall be filed the Civil provides expiration eighty days now the mechanism for enforcement of after the of one hundred [u]pon alleged § un- Hawaii’s discrimination laws. HRS 368- after the date ... which the 11(c)(1) (Supp.1992) provides "complaint discriminatory practice occurred[.]" that no lawful nothing in Part I complaint ordinary Similarly, sense. filing an administrative for unlaw legis- discharge Chapter that the ful commences on the date that of HRS 378 indicates given, give meaning to terminate is not on the date lature intended to “occurred” a notice commonly termination. decline to do so. its understood one. actual We than 378-4(c) Instead, College Dictionary § to See Random House we construe HRS (rev. 1979) that, mean, employee (defining an “occur” mean an action in which ed. alia, discharged happen; she to pass.”). claims that he or inter “to come 378-2(1), ninety-day § violation of HRS 378-4(c) past § uses “occur” in the HRS filing period employee commences when the Thus, terms, express HRS tense. actually discharged. 378-4(c) filing provides ninety-day that the plain compelled Our decision is alleged period begins run the ... “after 378-4(c). §§ language of HRS 378-2 and discriminatory practice unlawful occurred.” discharged and when he filed When added.) (Emphasis “alleged un- When the DLIR, complaint his with the 378- discriminatory practice” lawful dis- is the 2(1) discriminatory made it “an unlawful charge employee, that means that practice employer ... to ... dis [f]or filing he period commences or she has after employee] employment ... charge [an is, discharged, been his or her after ... status[.]” employment has terminated. 378-4(c), turn, provided com “[n]o statutory inter It is a cardinal rule of plaint expiration shall be filed after the that, pretation the terms of a statute where days upon ninety after the date which the plain, unambiguous explicit, are are we discriminatory practice oc alleged unlawful liberty beyond not at to look materia, pari upon curred.” Laws in meaning. Kaapu different v. Aloha matter, subject interpreted same Corp., Tower Dev. Richardson, 76 reference to each other. Ha Instead, duty is our sole at 1202. in con wai'i at Read give plain obvi effect to the statute’s 378-2(1), then, junction with HRS meaning. ous AIG Haw. Ins. Co. v. Estate of 378-4(c) prohibited any complaint from be 633-34, 851 P.2d Caraang, 74 Haw. days ing “ninety after the filed more than Accordingly, in an we hold alleged [‘discharge from upon date which the discharge alleging action unlawful violation ... employment ... because of marital sta filing time for an admin of HRS added.) (Emphasis “Dis tus’] occurred.” begins complaint to run on the date istrative operative charge” and “occurred” are the employee actually discharged, that the words. is, employment her on the date that statute, give interpreting terminates. meaning, un operative their common words Departure from the literal construction something requir in the statute less there justified only if such a the statute would be interpretation. ing a different Schmidt obviously unjust and absurd and result were Apartment Board Directors Ass’n. purposes policies inconsistent with Apartments, 73 The Marco Polo Owners of Chapter See Richard Part I of HRS 378. (1992); 582, 836 P.2d Haw. son, 1207; State Hawai'i at P.2d 325, 328, Garcia, Haw.App. State v. Magoon, 75 Haw. (1992). in the When used — reconsideration context, “discharge” means the employment —, However, adher employment. of one’s Black’s termination 378-4(c) § plain language of HRS ence to the instance, Dictionary, Law for defines “dis just eminently re produces an sensible and employ charge” to “[t]o mean dismiss purposes sult is consistent with that ment; employment of a to terminate the laws. employment discrimination Hawai'i (6th Dictionary Law person.” Black’s 1990). filing period A Chap bright line rule that Nothing in I of HRS ed. Part discharge actual on the date of legislature intended commences ter indicates that the fairly of both the interests way than its accommodates “discharge” use Cos., hand, employees employers. On the one adjudication

such a rule favors of the merits period The between notice and actual dis § of HRS 378-2 claims. We think it fair to charge ordinarily relatively short. We most, say many, employees that if not be unlikely many think it claims will be begin pursue legal come aware of and addition, come stale in the interim. be discharge only remedies for unlawful after and, employer pre cause an would know— they actually have been dismissed. Were sumably, control —when it notified an em filing complaint time for an administrative ployee impending discharge, of his or her i.e., begin upon before notification that nothing prevent taking steps it from employer discharge intended to an em protect against problems normally associ ployee, likely many employees it ated with stale claims. or, perhaps, would have little no time left to Finally, filing period a rule that the com- protections invoke conferred Part I of discharge, mences on the date of actual like Chapter following an unlawful disc rule, any bright simplic- line has the virtue of harge.7 think a We construction of HRS ity. Because it removes doubt about 378-4(e) § favoring adjudication on the mer filing period begins, when the it has the pur its is more consistent with the remedial avoiding protracted beneficent effect of poses Chapter of Part I of HRS 378 than one expensive litigation precise over the date likely potentially to bar meritorious claims. adequacy employer’s of an notice of ter- Agsalud, As we said Puchert v. (1984), dismissed, inevitably mination that would result if appeal we 1001, 105 concluded that triggered U.S. S.Ct. 86 L.Ed.2d 710 the date of notice (1985), 378-33(b) construing filing period. periods which establishes the time Having meaning construed the of HRS employee within which an file an must ad 378-4(c), application turn to its in the complaint wrongful ministrative dis present dispute case. There is no about the charge suspension in violation of HRS agree material facts. Ross and Stouffer 378-32(2): discharged Ross was on December allowing construction of this section question There is also no that the unlawful hearing providing on the merits and discriminatory practice alleged in Ross’s employee with the avenue which he DLIR complaints and circuit court was his may remedy be afforded a for the violation Therefore, discharge. pursuant to HRS rights of his would be more consonant with 378-4(c), ninety days Ross had De- —from enactment of remedial social through cember March 1988—to legislation for workers than would a tech- complaint file a with the DLIR. Because he reading deny nical which would relief with- complaint filed his on March he opportunity out an to be heard. 378-4(c). complied with HRS

Id. at 677 P.2d at 457-58. hand, reading

On the other our We therefore hold that Stouffer was not 378-4(c) employers summary judgment not entitled to does mean that will on count I on against large ground forced to defend numbers of complaint Ross’s DLIR Wiegand timely “stale” claims. See v. Allstate Ins. filed.8 Iations, employees savvy enough thereby diminishing Those to know possibility of an period filing discharge. the time an administrative com- amicable resolution before That is a plaint might they actually particularly unnecessary start before were dis- real—and in cases —risk us, charged might find themselves in the difficult such as one before where Stouffer's Octo- 20, position having complaint of to file a discharge in which ber 1987 notice that it intended to discharge yet the crucial element—the to hope Ross was conditional and held out the —had contrary gen- Treffiy occur. Not would that be to Ross and could continue to work at the principles governing eral action, the accrual of of depart- causes Resort if either transferred to another Yamaguchi Hospital Queen's see v. The ment before December Center, Medical 65 Haw. (1982); Hawaii, Waugh University apparently 693-94 v. attempt following 8. Stouffer made no of (1980), discharge 966 but the remand in Ross I to show that its potentially employee/employer pursuant it sour re- of Ross to its no-relatives fit into akin remedy backpay equitable Remedies VII 3. Available — U.S. —, restitution), cert. remedies, equitable In addition to various 3009, 120 S.Ct. L.Ed.2d recovery of complaint seeks Ross’s amended § argues that even if HRS 378- punitive damages under compensatory relief, 5(f) provides only equitable for he is I.9 count punitive compensatory still entitled discharged and when At the time 368-17(a) § damages (Supp. under HRS complaint in circuit he filed his amended 1992). 368-17(a), § He claims that HRS 378-5(f) court, § provided that HRS (after 1,1989 July effective on which became employer] finds has [an if the court complaint), allows his amended filed engaged engaging any in unlawful in or punitive recovery compensatory of discriminatory practice in as defined this damages brought pursuant in civil actions enjoin [employer] part, may the court Chapter I 378 and should be Part of HRS engaging discrimi- such unlawful retrospectively.10 disagree. We As applied natory such practice and order affirmative 368-17(a) suming, § arguendo, that HRS may may appropriate, action as compensatory permits a court award include, to, reinstate- but is not limited brought un punitive damages in civil actions ment, hiring, employees, upgrading or Chapter I it does not der Part of HRS ..., any other backpay or or with without (1985) § retrospectively. 1-3 operate HRS appro- court deems equitable relief retrospective any has provides “[n]o law Backpay liability shall not accrue priate. expressed or operation, unless otherwise ob years prior more two from date than viously nothing find intended.” We complaint filing history [DLIR], else) (or anywhere indicat Chapter HRS added). 378-5(f) (1985) (emphasis § legislature expressly or obvious ing that the relief to plainly 368-17(a) limits available statute apply retro ly intended HRS remedies; equitable it does not appropriate prospective It has ef spectively. therefore compensato recovery of either Nakata, authorize the only. v. fect See State ry punitive damages, both of which are legal remedies. See United traditional prevails Accordingly, we hold that if Ross — —, Burke, —, States U.S. (count I) claim marital discrimination L.Ed.2d S.Ct. remand, appropri- following he is entitled to language under Title (essentially identical relief, including backpay, as equitable ate Rights Act of U.S.C. of the Civil

VII 5(f), he cannot provided in HRS but 378— (prior to its amendment 2000e-5(g), puni- compensatory damages or recover 1991) compensato not allow awards “does damages on that claim. tive punitive damages; it limits ry or instead injunctions, backpay,- remedies to available B. II Count relief.”); Spa equitable see also and other Hotels, Inc., In Parnar v. Americana Internal rrow Commissioner Revenue , (D.C.Cir.1991) (under recog we Title F.2d complaint amended seeks exceptions 9. Count Ross’s forth HRS 378-3. one of the set for, things, among that Stouffer compensatory damages We have clear basis to conclude other no exceptions distress, that none depres- has either conceded emotional "serious mental or argument. It applies life, it has waived that or that sion, embarrassment, enjoyment of loss of remand, may therefore follows that on general damages.” loss consortium and more attempt to that one or still demonstrate punitive separate claim for V asserts a Count applies. exceptions We damages. III.D. See section infra discourage "piece- strongly simply note that parties litigation all and their and remind meal” 368-17(a) (Supp.1992) provides 10. responsi- attorneys litigate obligations to of their by the part [Civil ordered ”[t]he remedies Appeal bly good See In re Tax and in faith. Rights under this C]ommission Inc., Mills, 76 Hawai'i Flour Hawaiian punitive compensatory chapter may and (1994); include 434-35 id. J., legal equitable relief[.]” (Levinson, damages concurring). at 435-37 unlawful, 378-2(1), exception judicially nized an pro created status” HRS doctrine, “employment holding viding at-will” a remedial scheme for that discrimina employer may tory “an be held liable in tort employment practice, legislature it discharge employee where his of an violates a provided enforcing self has the means for public policy.” clear mandate of 65 Haw. at public policy that Ross seeks to vindicate 380, 652 P.2d at 631. Ross asserted a Par through words, his Pamar claim. claim, alleging discharge nar that his violated decided, legisla even before Pamar was public policy against employ of Hawaii already ture had done Pamar what a claim ment discrimination based on marital status do, is, designed modify employ and, broadly, against discouraging more mar ment important at-will doctrine to further an relationships. ital The circuit court dis public policy. expression Absent a clear claim, apparently ground missed the on the contrary,11 intent to the think independent that an Pamar claim could not unnecessary it is both permit and unwise to a public policy upon be maintained where the action, judicially created cause of which is which the claim is based is embodied designed promote specific public policy statute, i.e., Chapter Part of HRS cases,” Parnar, in a “narrow class of provides remedy itself a sufficient for its to be maintained violation. policy sought where the to be vindicated is already providing embodied in a statute Several decisions of the United States Dis- remedy own for its violation. The fact that trict Court for the District of Hawaii have the relief available under Ross’s HRS 378- reached the same conclusion on sound rea- relief, equitable claim is limited to see instance, soning. Lapinad For v. Pacific III.A.3, supra change section does not our Oldsmobile-GMC, Inc., F.Supp. compensa conclusion. While addition of (D.Haw.1988), the court concluded that a tory punitive damages might enhance Pamar claim was policy against the enforcement of the dis apply intended to to a “narrow class of status, crimination based on marital we do wrongful discharge cases” where the action not believe that the available reme necessary is seen as pub- to effectuate the dies, quite are which broad in their own If, however, lic at stake. the statu- right, compensate are insufficient to Ross for tory regulatory provisions which evi- employment discrimination claim. Cf. public policy provide dence the themselves Inc., Chaney Smith Realty, Brooks remedy wrongful discharge, for the pro- 250, 258-59, Haw.App. remedy public vision of a further under the (1994) (because Chapter 388 did not policy exception unnecessary. If the provide remedy sufficient employee for an legislature has considered the effect of discharged asserting rights pro under its wrongful discharge policies on the which visions, remedy wrongful common law they promoting, are provision by the barred). discharge was not remedy goes beyond courts of a further thought what itself was nec- Accordingly, we hold that the circuit court essary public policy. to effectuate that properly granted summary judgment in favor F.Supp. at 993. Accord Hew-Len v. of Stouffer on count II of Ross’s amended Woolworth, F.Supp. F.W. 1107-08 complaint. (D.Haw.1990); Lui v. Intercontinental Ho- (Hawaii), Corp. F.Supp.

tels C. Counts III and IV (D.Haw.1986). agree reasoning We appeals of those deci the dismissal of his claims for By making discharge sions. negligent of an em intentional and infliction of emo- ployee “because ... [his her] tional distress. (Supp.1992), pro- development which limit the of the common law nor to Cf. part rights vides in preempt rights that the created under the the common law and remedies on Act, subject Hawai'i discharges Whisteblowers’ Protection Part V of matter of con- Chapter trary public policy.” "shall not be construed to

465 believed that 1. duced no evidence that Stouffer Intentional Infliction of policy of no-relatives was the enforcement Emotional Distress any that Stouffer or of its em- unlawful or Recovery infliction of for intentional “beyond of de- ployees behaved all bounds permitted only if distress is emotional Chedester, cency” discharging 64 him.' See alleged tortfeasor’s acts were “unreason 468, 535. himself Haw. at Ross 310, Miyagi, Calleon v. 76 Hawai'i able.” deposition he in his that believed testified 1278, n. P.2d 1289 as 321 876 Perry to of whatever he that “acted the best amended, 76 Hawai'i time,” conscience] believed his Stecker, (1994); Chedester meetings leading up and admitted that (1982); P.2d 535 Marshall v. 643 were Stouffer’s decision enforce Hawaii, University Haw.App. 9 of Indeed, polite. undisputed that evidence P.2d An act is “unrea permit arrange “ Ross Stouffer offered to just or if it is “without cause ex sonable” gave ” him an transfer and an extend- in-house beyond decency[.]’ all of cuse and bounds period ed of time make a decision about Chedester, P.2d at Haw. at suggests resign whether transfer or (quoting Hosp., Fraser v. Blue Cross Animal circumstances, under acted de- Stouffer (1952)). words, Haw. In other cently. complained “outrageous,” act of must be has Because Ross failed to adduce employed term in the Restatement as that is unreasonably in acted evidence (1965).12 (Second) § 46 Id. Tarts of him, hold, discharging we course of of question “The whether the actions us, before that his claim for inten- record alleged or outra tortfeasor unreasonable tional of distress was infliction emotional instance, is for the first geous the court summary properly judgment. dismissed on may although persons dif where reasonable question it be left to the fer on that should Negligent Infliction of Panis, Wong Haw.App. jury.” Emotional Distress (citing P.2d Restatement Ross contends that the circuit h). (Second) § 46 comment Torts dismissing negligent claim for erred in his argues acted unreason- Ross that Stouffer distress, arguing that infliction of emotional by discriminatory him for ably discharging physi recovery is allowed in the absence of a performance his unrelated to work reason point, cally injury. manifested On taking by refusing actions to consider correct; recovery have is held transferring him. At discharging short showing of permitted physically without minimum, genuine argues, is a there Campbell v. Animal manifested harm. regarding fact the unrea- issue of material Station, Quarantine actions, and that of Stouffer’s sonableness State, (1981); Rodrigues v. issue, therefore, left for the should have been have We disagree. jury to resolve. We held, however, recovery negli also gent one in the infliction emotional distress points to no evidence record physically injured generally permitted not indicating that the manner which before us Ross, physical injury to only discharged motivation when there “some or its resulting so, person” from the property has or a doing unreasonable. He ad- "outrageous” Liability the con- explaining type has been found where con- character, outrageous so claim for intentional infliction duct has been duct that makes a actionable, degree, go beyond as to all emotional distress the Restatement so extreme in (Second) decency, regarded states: and to Torts bounds of atrocious, utterly intolerable in a civilized enough the defendant has It has been Generally, community. the case is one tortious even acted with an intent which is average criminal, facts to the recitation of the he has to inflict or that intended community distress, arouse member or even that his conduct emotional actor, "malice,” against him to lead resentment a de- has been characterized exclaim, "Outrageous!” gree aggravation entitle the which would (Second) § 46 d. Torts comment damages Restatement plaintiff punitive for another tort. Chedester, reconsider- conduct. 64 Haw. at Haw. defendant’s denied, P.2d at 535.13 71 Haw. ation (1989). general rule We adhere to presented of this case. Ross has no

context Accordingly, that Ross cannot re- we hold injury physical to himself evidence punitive damages cover for tortious breach of anyone Accordingly, we hold that the else. properly contract and that the circuit court properly summary judg- circuit court entered dismissed count V of Ross’s amended com- negligent ment in favor of on Ross’s plaint. distress claim. infliction of emotional See Calleon, 76 Hawai'i at 876 P.2d at 1288. E.Count VI

D.Count V above, As noted because Ross has not as- count The circuit court dismissed V signed point the dismissal of count VI as a seeking puni complaint of Ross’s amended appeal error on and has not addressed the damages. acknowledges tive that a briefs, claim in his we hold that he has punitive damages indepen claim for is not any argument im- waived that count VI was tort, purely sepa dent but is incidental to a 28(b)(4) properly HRAP dismissed. Kang Harring rate cause of action. See 28(b)(7). summary We therefore affirm the ton, 59 Haw. judgment favor on count Stouffer’s VI. light holdings of our above affirm II, III, IV, ing the dismissal of counts and VI complaint, as well as our of Ross’s amended 7(F) F.Rule the HawaVi punitive damages holding that are not recov Arbitration Rules (count on Ross’s 378-2 claim erable finally argues that Stouffer’s I), only remaining might claim that be partial summary judgment, motion for recovery punitive for the dam the basis sought summary judgment which it on counts VII, ages implied is count breach of contract. VII, through improper II under Hawai'i punitive damages In order to recover based (HAR) 7(F) (1991) Arbitration Rules contract, must on a breach of a one show (i.e., dispose it did not seek to of all claims wilful, “the contract breached such a [was] yet summary judg had move as to result in a

wanton or reckless manner I). 7(F) provides ment on count HAR injury.” Amfac, tortious Inc. v. Waikiki dispositive motions shall to the “[a]ll be made Co., 74 Haw. Beachcomber Investment required Circuit Court as law or rule Qued (citing 139 n. 37 n. 23 notwithstanding the fact that a case is under Brothers, Inc., ding v. Arisumi 66 Haw. Program.” the'[Court Annexed Arbitration] (1983); Hotel, Outrigger Dold v. (1972)), 22, 501 P.2d 54 Haw. 7(F) Nothing explicitly requires in HAR denied, reconsideration claim, dispositive every motion to include P.2d 144 authority support argu- no Ross offers It is not clear to us whether Ross ment. While we share Ross’s concern about separate “piecemeal” litigation, especially respect asserts a claim for tortious breach contract, assigned addition to his claim for breach to cases to the Court Annexed Arbi- does, implied Assuming Program, pro- he tration “to contract. which is intended sug prompt equitable .resolution of we find no evidence the record even vide a 2(A) matters[,]” (1991), if the al civil HAR gesting Stouffer did breach certain we contract, leged implied partial done hold that motion for sum- the breach was Stouffer’s “wilful, mary judgment, sought in such a wanton or reckless manner” dismissal six claims, justified. punitive damages of Ross’s seven did not violate HAR 7(F). Id.; Corp., Motors Masaki General (Supp.1992) negligent that HRS 663-8.9 now infliction of emotional distress "if

13. Note injured solely provides physically out of that one who is not the distress disturbance arises damage objects." suffering may property from mental illness not recover or material (internal omitted), quotation reconsid marks IV. CONCLUSION eration reasons, foregoing For the vacate determining purpose when judgment August summary entered on statute, limited the words “we to count I of Ross’s amended com- poli underlying the of the statute to discern (the claim), § plaint 378-2 affirm the promulgate to cy legislature seeks which the II summary judgment through as to counts legislative may] ... look relevant [but to VI, proceedings and remand for further con- Co., history[.]” Hawaii Ins. 76 Sol AIG opinion. sistent this with (citation 921, 304, 307, 875 Hawai'i P.2d omitted), quotation internal marks recon KLEIN, Justice, concurring and denied, 76 Hawai'i 877 P.2d sideration MOON, Justice, dissenting, Chief with whom joins. liberty are at to inter- Conversely, we not majority opinion except I in as concur the pret statutory provision to a a further part I to III.A.1. Because believe should language is not articulated in either the Company overrule Ross v. Hotel legislative or the relevant his- the statute (Hawaii) Ltd., interpre- tory, if that such an even we believe reconsideration more re- produce tation would a beneficent (1991) (Ross I), I affirm the sult, appli- function in the “[t]he Court’s judgment as I. Ac- trial court’s to Count interpretation of such laws must cation III.A.1, I cordingly, part dissent. encroaching carefully on limited avoid legislature] power to determine [the I. carry policies out.” and make laws to them I, dissent to Ross Justice Wakatsuki Union, Markets, Boys Inc. v. Retail Clerks “[rjather focusing in than on asserted that 235, 256-57, U.S. 90 S.Ct. Local (HRS) terpreting Revised (1970) (Black, Hawai[‘]i Statutes J., 26 L.Ed.2d majority I [in ] ... over- dissenting). goes beyond When judicial legislating an stepfped] bounds statutory underlying purposes articulated affecting important policy issue business imposes its own provisions and constitutional management-labor relations that should bet public policy, appropriate that court view of decide.” Ross ter be left to engages judicial legislation. improperly (Wakat P.2d at 304-05 Haw. J.). Moon, suki, J., joined I dissenting, B. agree I dissent and take this legis- By enacting HRS 378-2 opportunity to the reasons elaborate prohibited employment discrimination lature amounted to wrongly decided and on, things, among other “marital sta- based judicial legislation. Majority at tus.” See addition, expressly legislature, n. 2. A. scope of discrimi- limited the marital status statute, being “the state of to that based on construing a our foremost nation “When being single.” obligation give effect to married ascertain and absolutely no indications legislature, to be There which is intention legislative despite the in the record primarily from the con obtained definition, legislature intended Int’l itself.” tained the statute Pacific prohibit based on the also discrimination Carp. Hurip, 76 Hawai'i Servs. (internal spouse. identity occupation person’s of a quotation omitted). course, Accordingly, proper judicial construction of “[statutory marks Of be limited status discrimination must context of the marital language must be read being on “the state in a to discrimination based construed manner entire statute and statutes,” being single.” See Moore v. married purpose of the consistent with the F.Supp. Sys., Honeywell Ins. & v. Hawaiian Guar. Methven-Abreu Information (D.Haw.1983) (rejecting claim of Co., way gave authority marital status discrimination under HRS utes in no this court the terminated, plaintiff disregard express statutory 378-2 where definition person, she was a married but be- of “marital status” contained in HRS 378- spouse’s competing of her cause interest business). Moreover, subsequent an examination of majority overstepped The Ross I judicial activity in states judicial by disregarding bounds of its role adopted interpre- whose courts had a broad definition “marital status” contained tation of marital status discrimination under expanding scope 378-1 and their statutes demonstrates that the lack of marital status discrimination to suit its view express definition of “marital status” in appropriate public policy. of See Ross allowing their statutes was a crucial factor in (“The public 816 P.2d at 304 Minnesota, example, them to do so. policy argument encouraging behind marital subsequent Kraft, to the decision in Inc. v. relationships, opinions enunciated in those State, (Minn.1979), N.W.2d the state comments[,] persuasive seems to us as legislature statutory added a definition of case.”). applied to the facts of this The Ross “marital status” as follows: majority undoubtedly good had intentions person “Marital status” means whether a sought implement what it viewed as married, remarried, divorced, single, is court, policy. the wiser The role of the and, separated, surviving spouse or a in however, policy, interpret is not to set but to cases, employment protection includes by legislature. the statutes as enacted the against discrimination on the basis of the supra, See dissent at situation, actions, identity, or beliefs of a By expanding scope of marital status spouse spouse. or former discrimination to further a that was by legislature, not Although articulated the Ross I Minn.Stat. 363.01.40 majority improperly judicial upheld abdicated its definition the result reached legislative Kraft, role for a clearly one. the definition indicated that spouse’s identity discrimination based on a is majority apparently The IRoss felt that it fundamentally different from discrimination impose policy preference could married, person single, based on whether a opinions jurisdictions from courts of other (Minn. French, etc. In State v. 460 N.W.2d opposing interpret- had reached results when 1990), Supreme of Court Minnesota ex- ing respective prohibitions their states’ distinction, pressly recognized stating: marital status discrimination. 72 Haw. at 353-54, plain 816 P.2d at 303-04. Not one of those language The this new definition statutes, however, that, cases, states’ contained non-employment defini- shows tions of “marital status.” Those statutes intended to address were, therefore, arguably individual, susceptible to an status not an individu- interpretations.1 Consequently, broader relationship spouse, fiancé, al’s with a fi- ancée, differing interpretations given to marital partner. sta- or other domestic The purposes tus discrimination extremely of those stat- following broad Bd., express statutory 1. Even in the Rights Appeal absence of an New York State Human status,” 506, 511, definition of "marital several courts in N.Y.2d 434 N.Y.S.2d (1980) (“the jurisdictions recognized plain plain have ordinary that the N.E.2d meaning encompass meaning of "marital status” does not of ‘marital status' is the social condition identity occupation person's spouse. enjoyed by of a an individual reason of his or her See, e.g., Muer Corp., having participated participate Miller v. C.A. 420 Mich. or failed to in a (1984) (no marriage”); 362 N.W.2d defi see also Commission on Human Re act; Homes, Inc., Michigan nition of "marital status” in lations Greenbelt 300 Md. placing prohibition against (quoting "marital status” dis 475 A.2d Manhattan act, Michigan rights approval). crimination in civil "the Hut with The decisions that Pizza Legislature prohibit opposite manifested its intent to dis reached the conclusion and influenced person majority consequently crimination based on whether a is mar the Ross I have been de (emphasis original); ried” not that based on scribed as "eccentric”. See Townshend v. Board Educ., identity, occupation, place employ "the 183 W.Va. 423 n. 396 S.E.2d spouse”); ment of one’s Manhattan Hut 190 n. 4 Pizza “and, employment policies such as the one that phrase cases” consti- No-relatives discharge on the recognition led Ross’s are based employ- tutes identity employee’s applicant’s fundamentally ment cases are different spouse not on “the and do discriminate based housing cases such as the case at bar. being being single.” state of married added).2 (emphasis 460 N.W.2d at 6 The Thus, poli- enforcement of a no-relatives ap- Minnesota definition “marital status” cy does not constitute “marital status” dis- plicable in non-employment cases that does crimination under 378-2. relationship include “an individual’s Furthermore, nothing legis- there is essentially spouse” the same suggest spite history lative status” found in definition “marital plain language, the statute intended By analogy, 378-1. clear “marital status” policies. As in the outlaw no-relatives noted under HRS 378-1 should not include “an dissent, prohibition IRoss of discrimina- “[a] relationship spouse.” individual’s with a tion on basis of of one’s identification Washington legislature added defini- spouse array personnel poli- covers a wide tion of status its statute cies, policies, including antinepotism policies more even similar 378-1 than major against hiring spouse of a business pro- Minnesota’s definition. That definition policies against having competitor, and vides: spouses supervisor-supervisee capacities.” legal “Marital means status status” the of 72 Haw. at 816 P.2d at 305. married, separated, divorced, being single, [A]nti-nepotism practice rules are standard or widowed. Century. and date to the turn of the back (Supp.1993). Today many private companies 49.60.040 have anti- Wash.Rev.Code nepotism policies spouses restrict Employees Kastanis v. Educational Credit Union, 26, opin working 122 from under the same chain of Wash.2d — Wash.2d —, survey compa- A command. 1981 of 374 by ion amended percent nies 82 who reported Supreme Washing the Court of 507 wives, employ both 74 ton, husbands although following interpreta the broad percent spouses working in restrict adopted marital discrimination tion of status department the in the func- same or same Washington Water Power Co. State survey companies 115 Comm’n, tion. A 1985 of Bights Human Wash.2d reported percent prohibit supervi- (1978) implied progeny, its P.2d 1149 Sekaran, by sion a relative. U. Dual- the that it was able to do so because Career Families status” not definition of “marital before at 488 & n. Townshend, the court. Wash.2d at W.Va. at S.E.2d juxtaposition & The of P.2d at 29 n. 2. the implausi Against backdrop, “[i]t this judicial interpretation adopted Legislature ble ‘that the would have struck statutory word, of a definition the policies nary the in or absence blow at [such] clearly statute, by legislature3 enacted express explain definition of or its out ” I, statutory definition at demonstrates intention.’ Ross (Wakatsuki, J., dissenting) scope (quoting “marital and does limits status” at 305 Hut, encompass additional factor 51 N.Y.2d at not Manhattan Pizza 953). 964, 415 at identity employee’s applicant’s N.E.2d See of an N.Y.S.2d Michigan Whirlpool Corp. also Civil spouse. divorced, antinepotism poli- applies but also court in French held that the 2. The against prohibition identity employee's marital status discrimination cies based on housing prevent property Kastanis, did not owner applicant’s spouse.” 122 Wash.2d refusing person planned to rent to who omitted). from live (footnote The P.2d at 29 together relationship with in a sexual anoth- definition, legislatively enacted legally person to whom she was not married. er hand, expressly to "the limits “marital status” married, being single, legal separated, status adopted interpretation, judicially 3. Under divorced, § 49.- or widowed.” Wash.Rev.Code meaning of marital status ... limit- “[t]he 60.040. married, being single, such as ed to conditions Comm’n, State, Bights 425 Mich. 390 also Briones v. 453 n. (1986) (“The (1993) (“This question here 972 n. 5 N.W.2d will intent, precedential quagmire by is one of and we do not not create a re Legislature examining via a [Hawaii believe the intended to so severe Rules Penal Pro (HRPP)] ly regulate employers’ personnel policies petition cedure rule 40 so own prohibit no-spouse opinions appeal as to rules. If the law on the basis that the first decided.”). change, incorrectly makers did such a then their was intend clearly.”). intent must be manifested more Yet, necessarily it doesn’t follow that a rule Moreover, public policy “encourag- by precedent established If infallible. ing relationships,” Haw. at injury unintended would result follow- on which the Ross decision, ing previous corrective action relied, majority avowedly support finds no order; inis for we cannot be unmindful of legisla- of HRS 378-2 or its the lessons furnished our own con- history. contrary, tive theOn sciousness, by judicial history, as well as provides protection against the same discrim- liability to error and the advan- [sic] persons single ination to who are as to those tages of review. Thus, who are married. Ross I was incor- Espaniola, 68 Haw. at 707 P.2d at 373 rectly judicial legis- decided and amounted to (citations quotation and internal marks omit lation. ted). Indeed, right “[w]e not have the duty but entrusted with a to examine the II. former decisions of this court and when rec impossible, onciliation is to discard our for majority opinion dismisses Stouffer’s Sup mer errors.” Koike v. Board Water plea grounds to overrule Ross I on the 100, 117-18, ply, 835, 845, 44 Haw. 352 (1) P.2d regarding a factual error the date of denied, reh’g 146, 44 Haw. 352 P.2d 835 marriage Ross’s “was immaterial to the (1960); Parke, 397, see also Parke v. 25 Haw. majority’s analysis holding,” [Ross I] and (1920) (“It generally 401 better to (2) establish legislature’s “the failure overrule precedent.”). a new than rule to follow a bad I ... majority’s vindicates the I [Ross ] Majority construction of HRS 378-2.” at

458, agree 879 P.2d at 1041. I that whether B. marriage Ross’s occurred two months or majority The relies on State v. Dannen fourteen months before he was terminated is 75, 83, 776, 780, berg, 74 Haw. 837 P.2d immaterial to the issue of marital status dis- — denied, Haw. —, reconsideration 843 358, crimination. See Ross 72 Haw. at 816 (1992), therein, 144 P.2d and the cases cited (Wakatsuki, J., dissenting) P.2d at 305-06 support proposition that we should not (noting may that the fact that Stouffer have reconsider Ross I because the has year marriage waited over a after Ross’s 458, Majority not overruled that decision. at discharging him before was “immaterial and 879 P.2d at 1041. Each of those cases was us”). cannot, irrelevant to the I issue before applying the doctrine of stare decisis. however, agree legislative that mere inaction legal “Stare decisis relates to the effect of precludes reconsidering us from Ross I. propositions adjudications prior announced in upon subsequent actions which involve simi

A. questions strangers pro lar between to the rule, general lightly ceedings As a adjudications “[w]e do not in which the were disregard precedent; Magoon, we subscribe to the made.” v. State 75 Haw. (internal 712, great always view that consideration quotation should 858 P.2d marks precedent, especially omitted), be long emphasis accorded one of reconsideration de — standing nied, —, (1993). general acceptance.” Espani Haw. 861 P.2d 735 Venture, Cawdrey appeal olav. Mars Joint part 68 Haw. The before us now is of the same (1985) (citation 365, 707 P.2d I action as Ross and involves the identical omitted). Thus, quotation parties. and internal marks See the doctrine of stare decisis 578). Similarly, the “law of the regarding leg apply, and the cases does policy consid- implicates case” doctrine fewer directly applicable, are not islative inaction doctrine,5 than the stare decisis erations hand, under the “law the On the other regarding re- have less reservations should doctrine, question “a determination of a case” “law considering a decision when the of the appellate an of law made doing only case” doctrine deterrent law of the course of an action becomes ‘the so. may disputed by reopening case’ and not be Furthermore, I Ross was decided stage question litigation.” later (3-2 decision). majorities It slimmest of Ariyoshi, 652 n. Robinson v. require one member of (quoting 297 n. 9 Glover recognize original appeal majority to that the (1958)), Fong, reconsider judi- wrongly and amounted decided denied, ation Haw. for that decision to be legislation cial order doctrine, however, merely “a The circumstances, any overruled.6 Under these practice rule of based on considerations of argument principles of the “law of that the efficiency, courtesy, comity,” Amfac prevent us from the case” doctrine should Co., Haw. Beachcomber Inv. Waikiki reconsidering particularly I is unavail- (quoting State v. Good ing. win, Haw.App. 263 n. (1988)), n. 2 reconsideration C. and “where Haw.

justice exceptions to requires, the doctrine of appeal in a original Because the resulted may re law of the case are made and we argument published opinion, an can made appeal holdings examine our second given should be inaction Cain, the same case.” Cain v. arisen in a weight as if the issue had same applied. Even as- case where stare decisis may legislative inaction be enti- suming that of the case” doctrine does not “law weight, tled to some to recon- present as formidable obstacle weight should be accorded [not] the doetime of stare decisis or conclusive sideration as judicata.4 legislature] respond failure of [the of res This the related doctrine prior court] of this on the explicitly recognized decision [a court has that “law judicata theory [legislative] that silence should doctrine “is akin to res of the case” inflexibility acceptance subject interpreted of decision. ... but not to the of Robinson, 9, Supreme] has judicata.” Court [United 65 Haw. at 652 n. The States res Glover, 42 that is at best treacherous (quoting ‘[i]t n. 9 Haw. cautioned 658 P.2d at 297 similarly equal of situated scope and effect the doctrine treatment 4. We defined of Co., Markets, judicata in v. 71 litigants.” Boys of res Kauhane Acutron Inc. v. Retail Clerks 458, (1990) 276 as follows: Union, 770, Haw. 795 P.2d U.S. S.Ct. Local 398 90 judicata, According J., of 1596, (Black, to the doctrine res 1583, 26 199 L.Ed.2d competent jurisdiction judgment aof court of appeal dissenting). addressing When a second any a new in court between is bar to action case, overruling decision reached in the same privies concerning parties or their same appeal disparate will not result in in the first matter, subject precludes same litigants. similarly situated treatment of relitigation, not of the claims which were action, litigated actually first but of in the also composition has that of the court 6.The fact grounds may have all of claim which been decided, although changed since I was litigated properly in the first action but were litigated itself not a sound reason to reconsider or decided. and of 463, (internal quota- decision, at 278 71 Haw. at 795 P.2d a bar to reconsideration is not omitted). Because the tion marks and brackets case” Yoshi (cid:127)under the "law of the doctrine. Cf. appeal arise of a "new instant does not out 40, Hosp., 50 Haw. 429 P.2d 829 v. Hilo zaki judicata does not action" the doctrine of res composition (holding change of 652, Robinson, Cain, apply. 65 Haw. at See rehearing, particular grant a bar to a of was not 35-36, 296-97; 59 Haw. at 575 P.2d at ly a three to two division on the when there was 472-73. petition reh'g original opinion), granting of principles favoring of adherence to factors Haw. certainty of stare decisis include "considerations congressional find in silence opine credibility alleged alone the as to the of child sex adoption, controlling Kim, of a rule of law.’ Gir overruling abuse victims and State v. States, ouard v. United [66 U.S. (1982), Haw. 645 P.2d 1330 to the extent S.Ct. 90 L.Ed. 1084] otherwise); that it held Association Own of Therefore, in the persua absence of ers Walberg Kukui Plaza v. Swinerton & evidencing sive circumstances a clear de Co., 98, 106-07, 68 Haw. 34-35 sign [legislative] inaction be taken as (1985) (holding granting stays that orders decision], acceptance prior of [the the mere proceedings compelling arbitration are legislature] silence of is not [the a suffi 641-l(a) final orders under HRS and over refusing cient reason for to reconsider the ruling holding contrary to the v. Pfaeltzer decision. Patterson, (1966)).7 49 Haw. 410 P.2d 974 Markets, Boys 398 U.S. at 90 S.Ct. at Briones, See also 74 Haw. at 848 P.2d at Thus, 1687-88. legis the mere failure of the (Levinson, J., (“[T]he concurring) holding lature to amend HRS 378-2 after Ross I [, [State Briones Briones I 71 ] Haw. decided, more, unpersuasive. without (1989), ap was] tantamount Department Monell v. Social Servs. Cf. pellate ‘plain error’ and we should [have] York, 668, 696-700, New 436 U.S. 98 S.Ct. it.”).. simply up’ ‘fess[ed] 2018, 2038-41, (1978) (Con 56 L.Ed.2d 611 Dannenberg, State 74 Haw. gress’s failure to amend the definition of (1992), therein, and the cases cited “persons” during as used 42 U.S.C. majority opinion which the relies for the years following seventeen Pape, Monroe v. proposition uphold prior that we should deci 365 U.S. 81 S.Ct. 5 L.Ed.2d 492 (1961), statutory interpretation sions of did not amount the face of to an “indication[ ] of congressional legislative acceptance distinguishable. inaction are all th[e] Court’s ear cases, In interpretation.”). statutory lier each of those scheme ambiguous and the court had resolved legislative inaction, itself, That in and of ambiguity by applying applicable rules of weight entitled to little is evident from a Dannenberg, construction. In we review of several decisions of this court in holding declined to overrule the of State v. which we have overruled our own earlier Rice, (1983), statutory interpretations despite legislative 712-1200(4) precluded See, trial courts e.g., Magoon, inaction. 75 Haw. at 185- granting motions for accep deferred (explicitly 858 P.2d at overruling 722-23 guilty pleas prostitution tance of cases. In Application Co., In re Kaimuki Land case, agreed that “HRS correctly because it failed to ambiguous,” [was] 74 Haw. at analyze review and statutory estoppel (RLH) and we ambiguity by resolved the seek Revised Laws of Hawai'i 5032); Dow, ing ascertain the State v. intent. 59- (1991) Matsui, 61, 402, Gorospe 377, 380-81, 72 806 P.2d 404-05 Haw. (overruling in 819 80, Wacker, (1991), part 332, 81-82 State v. 70 Haw. 770 P.2d reaffirmed our (1989), analysis in statutory 420 because “the Zator v. State analysis Farm Mutual Au Co., employed 594, in longer applica Wacker no tomobile Insurance [was] 69 Haw. 752 ble”); Batangan, 552, (1988), State v. 71 P.2d 1073 Haw. 559- where we held that the 63, (1990) 48, (holding tolling provisions 799 P.2d 52-54 applied of HRS 657-13 to Rules 702 year and 704 of the Hawaii toll Rules of the two statute of limitations set Evidence do not expert allow witnesses to forth in bringing HRS 294-36 for a suit for Similarly, occasionally (1972) we have overruled our Haw. 497 P.2d 1360 to the extent analyses although of certain rules of court the counsel); by that it countenanced waiver trial unchanged. of the rules has remained Balauro, State v. 73 Haw. 828 P.2d See, 217, 220-22, e.g., Young, State v. 73 Haw. (1992) Stone, (overruling State v. (1992) (holding pursu- 514-15 651 P.2d 485 to the extent that its right ant to HRPP Rule 5 the waiver of the to holding regarding periods excludable time under jury writing signed trial by must be either in HRPP Rule 48 was inconsistent with subsection open defendant or in defendant, court from the mouth of the (c)(6) rule). of that Olivera, overruling State v. Ltd.); case, Dredging Company, Honolulu “the waiian benefits. two no-fault (decided years Ad obviously ambiguity,” nine after Star Bulletin create[d] statutes (quoting Publishing). at 819 P.2d at 82 vertiser 1075), Zator, 597, 752 at P.2d at Haw. case, meaning of marital In the instant ambiguity seeking we resolved the under HRS 378-2 status discrimination legislative In In re ascertain the intent. Tax analysis in Ross ambiguous was not Co., Supply Marine 5 Appeal & of Pacific supra, judicially dissent was unsound. See 572, 576-79, 893-96 Haw. 467-470, 879 P.2d at 1050-1053. More- at (1974), this court refused to overrule the over, only years it since Ross has been three “structures,” term interpretation of the as reasons, For the ma- I was decided.8 these predecessor 273-6 and its used Dannenberg jority’s and the reliance statutes, Tax Ap which was followed misplaced. cases therein cited Taxes, Dredging peal Court Hawaiian (June 8, Ltd., No. Company, Cases 1955). ships reasoned that D. were not “structures” within ordi

vessels word, nary meaning and even assum of Legislative particularly inaction uncon statute, ambiguity ing an in the established vincing reconsider a deci basis to decline to supported statutory rules of construction original was tanta-"1 sion when the decision interpretation. Finally, in Honolulu duty judicial legislation. Our mount to Burns, 603, 604-06, Bulletin v. Haw. Star greatest is at its correct erroneous decisions appellant circumstances, in such for “while unconstitu urged this court to overrule Advertiser Pub power by the executive and tional exercise of Fase, (1959), aff'd, lishing Co. v. 43 Haw. 154 subject government of legislative branches (9th Cir.1960), arguing that the 279 F.2d 636 restraint, judicial upon our check misinterpreted definition of court had of power of is our own sense own exercise purposes RLH “manufacturer” Koike v. Board Water self-restraint.” 5455(A). there The court found that Supply, Haw. language [of in the ambiguity “sufficient Butler, 297 U.S. (quoting States v. United appro such compel us invoke statute] 312, 324-25, 80 L.Ed. 477 56 S.Ct. rules construction will priate (1936) (Stone, J., reh’g dissenting)), ascertaining legislative intent aid us Because at matter.” 50 Haw. this passing legislation, it is complexities applied said The court then rules place fair the burden on not interpre that the and concluded construction Monell, legislation. See to enact corrective Pub of “manufacturer” Advertiser tation (overruling 436 U.S. at S.Ct. interpretation. lishing was the correct “persons,” as used interpretation of the term adopted involving in 42 that was Furthermore, U.S.C. in addition to 167, 81 S.Ct. Pape, 365 U.S. statutory Monroe v. ambiguous resolution of proper (1961), reasoning that the case relied on L.Ed.2d 492 in most of the cases that provision, ‘place [the Court] should inaction, significant length one “where Congress the burden on the original decision. shoulders passed had since time ” Girouard, (decided (quoting nearly error’ See, the Court’s own e.g., Dannenberg ten 830)). Thus, 70, 66 Rice); Supply 328 U.S. at S.Ct. & years after Marine Pacific Taxes, and wrongly I was decided (decided because Ross years Ha nineteen after Co. the enactment of all of bills resulted in Although points bills were these to the fact that Ross Acts in legis- in 1993 and 323 during 365 Acts and introduced both I legislature’s is entitled failure overrule seeking to HRS to add lative sessions Furthermore, re- weight. no committee validity to little explicitly address concerning the ports generated bills spouses were company prohibiting policies introduced, 2,158 and indications as among were no other working together, those bills were 1,928 legislature approved disapproved whether the Bills Senate Bills introduced House 1,287 been 1,684 in Ross have the decision reached House Senate 1993 and Bills brought light to our attention. the fact that in 1992. Bills introduced judicial legislation, amounted to we have a

duty to reconsider and overrule that decision.

III. appeal,

In this opportunity we have the

rectify one instance where this court “over- judicial

step[ped] by legislating bounds

important policy ... issue that should [have decide,” left to

been]

I, (Wakat- 72 Haw. at 816 P.2d at 304-05

suki, J., Moon, J.), dissenting, joined by

reestablish our commitment to act within the judicial

constraints of our role. We should

therefore reconsider overrule that

decision, and limit claims of marital status

discrimination under HRS 378-2 to situa- involving

tions discrimination based on “the being being single.”

state of married or Hawai'i, Plaintiff-Appellant,

STATE of PROPIOS, Defendant-Appellee,

Lenee Palea,

Louis Defendant.

No. 16005.

Supreme Court of Hawai'i.

Sept.

Case Details

Case Name: Ross v. Stouffer Hotel Co. (Hawai'i) Ltd.

Court Name: Hawaii Supreme Court

Date Published: Aug 30, 1994

Citation: 879 P.2d 1037

Docket Number: 16486

Court Abbreviation: Haw.