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Oral Argument Before the Supreme Court of the State of Hawaii

No. SCWC-14-0001313 Wednesday, May 18, 2016, 8:45 a.m.

GREEN PARTY OF HAWAII, KAREN M. HOLT, ELIZABETH M. RUZE, MICHAEL KRATZKE, MOANI KEALA AKAKA, KIM DUFFETT, MARY JO DENNISON and MAKA`ALA KA`AUMOANA, Petitioners/Plaintiffs-Appellants, vs. SCOTT NAGO, Chief Elections Office, State of Hawai`i, and STATE OF HAWAI`I, Respondents/Defendants-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioners:

Lance D. Collins

Attorney for Respondents:

Kimberly Tsumoto Guidry, First Deputy Solicitor General

NOTE: Order accepting Application for Writ of Certiorari, filed 03/10/16.

COURT: MER, C.J.; PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

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.