No. CAAP-10-0000007, Wednesday, September 12, 2012, 10 a.m.

Robert G. Babson, Jr., Ann C. Babson, Joy Brann, Paula Brock and Daniel Grantham, Plaintiffs-Appellees, vs. Scott T. Nago, Chief Elections Officer, State of Hawai`i and State of Hawai`i, Defendants-Appellants.

Attorney(s) for Defendants-Appellants:

David M. Louie, Attorney General and Kimberly Tsumoto Guidry, Deputy Solicitor General

Attorney(s) for Plaintiffs-Appellees:

Lance D. Collins

COURT: Nakamura, CJ; Fujise and Leonard, JJ.

SPECIAL NOTE: The above argument will take place in the Supreme Court courtroom on the Second Floor of Ali`iolani Hale, 417 South King Street, Honolulu, Hawai`i.

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Brief Description:

Defendants-Appellants Chief Elections Officer of the State of Hawai`i and the State of Hawai`i (collectively, “State”) appeal from the judgment entered by the Circuit Court of the Second Circuit (Circuit Court) in favor of Plaintiffs-Appellees Robert G. Babson, Jr., Ann C. Babson, Joy Brann, Paula Brock, and Daniel Grantham (collectively, “Plaintiffs”).

In 2006, the Hawai`i Office of Elections issued a Request for Proposal (RFP) seeking proposals from qualified entities to lease a new voting equipment system to collect, tabulate, and report votes for the 2008-2016 primary, general, and special elections. The RFP required that the new system comply with federal 2005 Voluntary Voting System Guidelines (2005 VVSG), or provide features that are functionally equivalent, and permit the transmission of voting results over telephone lines or the internet. Prior to the 2008 primary election, Plaintiffs filed a complaint challenging the State’s actions related to the RFP and seeking declaratory and injunctive relief. Among other things, Plaintiffs sought a declaration that the requirements for the new voting system imposed by the RFP constituted rules that should have been, but were not, adopted in compliance with the Hawai`i Administrative Procedures Act (HAPA). The Circuit Court granted summary judgment in favor of Plaintiffs and enjoined the State from engaging in “conduct in conformance the [2005 VVSG] or transmitting ballot counts and election results by telephone line or the internet until rules have been promulgated pursuant to [the HAPA.]” The State subsequently adopted rules pursuant to the HAPA.

On appeal, the State argues that the Circuit Court erred in granting summary judgment in favor of Plaintiffs because: (1) Plaintiffs did not have standing to challenge the State’s purported adoption of the 2005 VVSG; and (2) the RFP specifications governing compliance with the 2005 VVSG and setting forth standards for the secure electronic transmission of votes are not administrative rules, and the State did not engage in any rule-making that was subject to the requirements of the HAPA. The State also argues that the Circuit Court erred in awarding attorney’s fees and costs to Plaintiffs because the State did not waive its sovereign immunity and the Circuit Court misapplied the private attorney general doctrine.