State v. Nago

• Decision Date: 03 September 2020
• Docket Number: NO. CAOT-20-0000528,CAOT-20-0000528
• Citation: 473 P.3d 758
• Parties: STATE of Hawai‘i, Plaintiff, v. Scott T. NAGO, Chief Election Officer, State of Hawai‘i, Defendant
• Court: Hawaii Court of Appeals

473 P.3d 758

STATE of Hawai‘i, Plaintiff,

v.Scott T. NAGO, Chief Election Officer, State of Hawai‘i, Defendant

NO. CAOT-20-0000528

Intermediate Court of Appeals of Hawai‘i.

SEPTEMBER 3, 2020

Patricia Ohara, Robyn B. Chun, Deputy Attorneys General, Department of the Attorney General, for Plaintiff.

Lori N. Tanigawa, Deputy Attorney General, Department of the Attorney General, for Defendant.

LEONARD, PRESIDING JUDGE, AND CHAN, J., WITH HIRAOKA, J., CONCURRING AND DISSENTING IN PART

OPINION AND ORDER OF THE COURT BY LEONARD, J.

On August 26, 2020, Plaintiff State of Hawai‘i (State ), by and through its Attorney General Clare E. Connors (AG ), filed a Complaint for Injunctive Relief (Complaint ), naming the State's Chief Election Officer Scott T. Nago (Nago ) as Defendant. The Complaint includes an Agreed Upon Statement of Facts, Issues, and Reasons in Support, and is accompanied by a Declaration by Nago.

The Complaint concerns a special election to fill a vacant seat in the Hawai‘i Senate. The parties agree that if candidates are nominated, or file nomination papers, up until the latest possible date contemplated under the applicable statute, which is September 24, 2020, then the Office of Elections will not have sufficient time to provide ballots to uniformed service members and other overseas voters. The parties further agree that the candidate filing deadline for this Senate seat should be advanced to September 5, 2020, to provide sufficient time for the Office of Elections to provide ballots to uniformed service members and other overseas voters in compliance with state and federal statutory mandates. The parties do not agree on the proper method to advance the candidate filing deadline and ask this court to determine, on an expedited basis:

1. Whether Hawaii Revised Statutes (HRS ) § 17-3 (b) (3) (2009) and HRS Chapter 15D (Supp. 2019) confer discretion on Nago to advance the candidate filing deadline for the subject special election from September 24, 2020, to September 5, 2020; and

2. If Nago does not have the discretion to advance the candidate filing deadline, whether the AG may obtain injunctive or other equitable relief pursuant to HRS § 15D-17,¹ which will effectively advance the candidate filing deadline for the subject special election from September 24, 2020, to September 5, 2020.

For the reasons set forth below, we hold that Nago does not have the discretion to unilaterally advance a candidate filing deadline, but that construing the applicable statutes with reference to each other, there is an alternative means to ensure substantial compliance with HRS Chapter 15D, the Uniform Military and Overseas Voters Act. We deny the AG's request for injunctive relief, but grant other equitable relief including a declaration that the subject statutes must be construed with reference to each other and in a manner to ensure that ballots and balloting materials for the City and County of Honolulu, including for the special election to fill the vacant Senate seat, are transmitted no later than September 18, 2020, and instructions to Nago to accept the nomination of party candidates and the nomination papers of nonpartisan candidates for the special election for the Sixteenth District of the Hawai‘i State Senate not later than 4:30 p.m., on Saturday, September 5, 2020.

I. JURISDICTION

HRS § 602-57(2) (2016) confers jurisdiction upon the Hawai‘i Intermediate Court of Appeals (ICA ) over an original civil action that is submitted on agreed facts:

§ 602-57 Jurisdiction. Notwithstanding any other law to the contrary, the intermediate appellate court shall have jurisdiction, subject to transfer as provided in section 602-58 or review on application for a writ of certiorari as provided in section 602-59:

....

(2) To entertain, in its discretion, any case submitted without suit when there is a question of law that could be the subject of a civil action or proceeding in the circuit court, or tax appeal court, and the parties agree upon the facts upon which the controversy depends[.]

Hawai‘i Rules of Appellate Procedure (HRAP ) Rule 18 further provides:

Rule 18. Agreed Facts; Submission On.

(a) Submission. As authorized by law, the parties to a dispute that might be the subject of a civil action or proceeding in any court or agency may, without the action of a trial court or agency, agree to submit a case directly to the intermediate court of appeals upon a statement containing the facts upon which the controversy depends, a statement of the question or issues, the contentions of the parties as to each issue, and the form of judgment that each party requests the intermediate court of appeals to render.

(b) Good Faith. It must be shown by affidavit or declaration that the controversy is real and that the proceedings are a good faith effort to determine the rights of the parties.

(c) Disposition. The appellate court may refuse to entertain a case submitted on agreed facts. If the appellate court entertains the case, the judgment rendered thereon shall be entered and may be enforced as in other cases, subject to the right of a party to move for reconsideration or, if the case is decided in the intermediate court of appeals, apply for a writ of certiorari.

This case, submitted to the ICA upon agreed facts, falls within the parameters of HRS § 602-57(2) and HRAP Rule 18. We hereby exercise our discretion to entertain this case and render a decision based upon the facts agreed to by the parties.

II. AGREED UPON FACTS ²

On June 18, 2020, the Honorable Breene Harimoto (Senator Harimoto ), the Hawai‘i State Senator for District 16, passed away.³ Had he not died, Senator Harimoto's term would have ended on November 8, 2022. The parties agree that, pursuant to Hawai‘i law, a special election to fill the vacancy left by Senator Harimoto's death must be held at the upcoming November 3, 2020 general election (General Election ).

The parties agree, and Nago avers, as follows. The Office of Elections is responsible for printing paper ballots and generating HTML ballots, which are included in the ballot packages transmitted to voters by their respective counties. Based on the programming used to generate the ballots, the ballots are finalized on a countywide basis and cannot be finalized by district. The City and County of Honolulu's ballots cannot be finalized until the list of Senate District 16 candidates is finalized. Once the list of candidates is finalized, the Office of Elections needs a minimum of twelve days to generate, proof, print, and deliver paper ballots and HTML ballots to the City and County of Honolulu. There are approximately 478,926 active registered voters in the City and County of Honolulu.

On August 26, 2020, Nago issued a Proclamation stating that a special election will be held on November 3, 2020, to fill the vacant seat caused by the death of Senator Harimoto. The Proclamation provides that party candidates shall be nominated by the county committees of the parties and submitted to the Office of Elections no later than 4:30 p.m. on Saturday, September 5, 2020. Nonpartisan candidates are to file their nomination papers within the same time frame. The Proclamation states that the Office of Elections will be open on Saturday, September 5, 2020. The parties point out that, unlike the typical nomination paper process in regularly-scheduled elections, no signatures are required on the nomination papers to be submitted by candidates wishing to run in this special election.⁴

On August 26, 2020, the Proclamation was posted on the homepage of the Office of Elections' website and submitted to the Garden Island, The Maui News, Hawaii Tribune-Herald, West Hawaii Today, and Honolulu Star-Advertiser for publication. The publication dates for the Proclamation were August 29, 2020, for The Maui News, and August 30, 2020, for all other publications. Copies of the Proclamation were emailed to each of the qualified political parties, and a call was also placed to each political party.

III. DISCUSSION

HRS § 17-3 (2009) provides various mandates for the filling of a vacancy in the Hawai‘i Senate.⁵ Applicable to this case, HRS § 17-3(b)(3) provides, in relevant part:

(3) If [a vacancy] occurs after the sixtieth day prior to the next succeeding primary but not later than on the fiftieth day prior to the next succeeding general election, or if there are no qualified candidates for any party or nonpartisan candidates in the primary, the vacancy shall be filled for the unexpired term at the next succeeding general election. The chief election officer shall issue a proclamation designating the election for filling the vacancy. Party candidates for the unexpired senate term shall be nominated by the county committees of the parties not later than 4:30 p.m. on the fortieth day prior to the general election; nonpartisan candidates may file nomination papers for the unexpired term not later than 4:30 p.m. on the fortieth day prior to the general election with the nonpartisan candidate who is to be nominated to be decided by lot, under the supervision of the chief election officer. The candidates for the unexpired term shall be elected in accordance with this title. Pending the election, the governor shall make a temporary appointment to fill the vacancy, and the person appointed shall serve until the election of the person duly elected to fill the vacancy.

(Emphasis added).

Thus, pursuant to HRS § 17-3 (b)(3), candidates for the vacant Senate seat must be nominated or file nomination papers not later than 4:30 p.m. on the fortieth day prior to the General Election, which the parties agree is September 24, 2020. The parties also agree that Nago is the State official that is responsible for implementing HRS § 17-3(b)(3).

The parties further agree that, pursuant to HRS § 15D-4 (Supp. 2019),⁶ Nago is also responsible for implementing HRS Chapter 15D, the Uniform Military and Overseas Voters Act, as well as its federal counterpart, 42 U.S.C. § 1973ff,⁷ the...