Hawaii Supreme Court Election/Admin Law Case To Watch

by Robert Thomas, InverseCondemnation, May 12, 2016

In this order, the Hawaii Supreme Court agreed to review ("accepted certiorari" in the local appellate lingo) the Intermediate Court of Appeals' opinion in Green Party of Hawaii v. Nago, No. CAAP-14-0001313 (Dec. 18, 2015). That decision answered in part the often elusive question of "what is an agency 'rule' that triggers the rulemaking requirements?"

There, the ICA held that certain practices by the State Office of Elections were not "rules," and thus need not have been adopted via the rulemaking procedures in the Hawaii Administrative Procedures Act.

For more, see our post on that decision, "'Mistakes Were Made' - Elections Office Practices Were Not 'Rules.'"

The Supreme Court will be hearing oral arguments later this month (Wednesday, May 18, 2016, at 8:45 a.m.). Here is a summary of the issues from the Judiciary's web site:

This case involves an action by the Green Party of Hawaii and seven registered voters who voted in the 2012 General Election (Petitioners) seeking a declaratory judgment pursuant to HRS § 91-7 (2012) that certain methodologies and procedures used by Scott Nago, Chief Election Officer, and the State of Hawai`i (collectively “Respondents”) in the 2012 election are invalid under the Hawaiʻi Administrative Procedure Act (HAPA). Specifically, Petitioners contend that Respondents violated rule-making requirements for failing to adopt administrative rules pursuant to HAPA regarding the methodology and procedures used to determine the number of ballots to be delivered to the precincts, request additional ballots when a precinct runs out of paper ballots, and address the situation where a voter votes on a ballot that includes some races in which the voter is not entitled to vote.

The Circuit Court of the First Circuit (circuit court) granted summary judgment in favor of Respondents holding that the challenged methodologies and procedures were regulations concerning only the internal management of the agency. On October 24, 2014, the circuit court entered final judgment, which was timely appealed by Petitioners. In a December 18, 2015 published opinion, the Intermediate Court of Appeals (ICA) affirmed the circuit court’s judgment. The ICA concluded that none of the procedures challenged by Petitioners were rules as defined in HAPA.

Petitioners filed an Application for Writ of Certiorari with this court on January 27, 2016, which was granted on March 10, 2016. Petitioners present five questions in the application:

(1) whether the ICA gravely erred by applying a standard in an election contest for overturning an election result based upon Petitioners’ claim of deprivation of voting rights and holding that such claims were immaterial because it would not have affected the outcome of the election in regard to ballot shortage procedures;

(2) whether the method used for ordering ballots was a one-time occurrence that would not affect future public rights or procedures;

(3) whether the improper handling of ballots is a matter of internal management and thus exempt from rulemaking requirements;

(4) whether the ICA misinterpreted Hawai`i appellate precedent; and

(5) whether the ICA erred in finding that Petitioners failed to cite to the record showing the circuit court determined the obligation of the agency was mitigated or relieved by failure to apply to the agency to engage in rulemaking procedures pursuant to HRS § 91-6.

Petitioners maintain that the challenged procedures and methodologies are rules as defined in HAPA and that the rules are invalid as they were not adopted pursuant to HAPA. Respondents assert that the challenged procedures are not rules as defined by HAPA and, accordingly, the ICA did not err in affirming the circuit court’s judgment.

We're not sure what it is about this case that made the Supreme Court interested -- the elections law or the admin law questions -- but guess we'll have more of an idea after oral arguments. 

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