Yoshimura v. Kaneshiro

• Decision Date: 01 February 2021
• Docket Number: SCAP-19-0000854
• Citation: 481 P.3d 28
• Parties: Tracy YOSHIMURA, Plaintiff-Appellant, v. Keith KANESHIRO, Defendant-Appellee.
• Court: Hawaii Supreme Court

481 P.3d 28

Tracy YOSHIMURA, Plaintiff-Appellant,

v.Keith KANESHIRO, Defendant-Appellee.

SCAP-19-0000854

Supreme Court of Hawai‘i.

FEBRUARY 1, 2021

Keith M. Kiuchi, Honolulu, for plaintiff-appellant

William C. McCorriston (David J. Minkin, Nadine Y. Ando, and Jordan K. Inafuku with him on the briefs) Honolulu, for defendant-appellee

RECKTENWALD, C.J., McKENNA AND WILSON, JJ., AND EDDINS, J., IN PLACE OF NAKAYAMA, J., RECUSED, WITH CIRCUIT JUDGE ASHFORD, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This appeal stems from the Circuit Court of the First Circuit's¹ ("circuit court") dismissal, for lack of jurisdiction, of Tracy Yoshimura's ("Yoshimura") petition to impeach Honolulu City Prosecutor Keith Kaneshiro ("Kaneshiro") under section 12-203 of the Revised Charter of the City and County of Honolulu (2017) ("section 12-203 of the Revised Charter"). That provision is titled "Impeachment of the Prosecuting Attorney," and it states as follows:

The prosecuting attorney may be impeached for malfeasance, misfeasance or non-feasance in office. The courts of the State of Hawaii shall have jurisdiction as provided by applicable law over any proceeding for the removal of the prosecuting attorney who may be charged on any of the foregoing grounds. The charges shall be set forth in writing in a petition for impeachment signed by not less than five hundred duly registered voters of the city, and said signatures shall be necessary only for the purpose of filing the petition. The petition having once been filed, hearings shall be held on all such charges.

In December 2018, Yoshimura created an online petition to impeach Kaneshiro after Kaneshiro received a target letter from the United States Department of Justice. Yoshimura asserted his petition was supported by 800+ electronic signatures collected from an online platform called Change.org. In April 2019, Yoshimura filed a first amended petition purported to be electronically signed by 500+ signatories on a different online platform, DocuSign.

Between February and April 2019, Yoshimura sought the legal opinion of the City Clerk as to what information was necessary to certify that the signatories of his online petition(s) were duly registered voters of the City and County of Honolulu. In April 2019, Deputy Corporation Counsel Moana Yost ("Yost") set forth the City's position in a letter stating that impeachment petition(s) must contain the full legible names, handwritten (not electronic) signatures, and residence addresses of at least 500 signatories.

Kaneshiro then moved to dismiss the petition, arguing that electronic signatures did not satisfy the requirements for a petition to impeach the city prosecutor under section 12-203 of the Revised Charter. Yoshimura then moved for leave to amend his petition to file a second amended impeachment petition, adding the City Clerk as a defendant, and seeking a declaratory order that the City must accept electronic signatures under Hawai‘i Revised Statutes ("HRS") Chapter 489E (2008), Hawai‘i's Uniform Electronic Transactions Act ("UETA"). Relevant to this appeal, HRS § 489E-7(d) (2008) states, "If a law requires a signature, an electronic signature satisfies the law." HRS § 489E-18(c) (2008), however, provides the UETA "does not require a governmental agency of this State to use or permit the use of electronic records or electronic signatures." HRS § 489E-18(a) (2008) also states "each governmental agency of this State shall determine whether, and the extent to which, it will send and accept electronic records and signatures to and from other persons ...."

Kaneshiro filed an opposition to Yoshimura's motion for leave to amend, which he combined with a cross-motion to strike the motion for leave to amend. The circuit court denied Kaneshiro's motion to dismiss, because Yoshimura's motion for leave to amend was pending at that time. At a later hearing on the motion for leave to amend (as well as Kaneshiro's cross-motion to strike the motion for leave to amend), however, the circuit court agreed with the City that signatories to an impeachment petition under section 12-203 of the Revised Charter must provide their full legible names, handwritten signatures, and residence addresses to enable the City Clerk to certify them as duly registered voters in the City and County of Honolulu and to protect the City's interest against fraud. The circuit court denied Yoshimura's motion for leave to amend, concluding it would be futile, as Yoshimura insisted on providing only electronic signatures without residence addresses, to protect the privacy interest of signatories. The circuit court also denied Kaneshiro's cross-motion to strike Yoshimura's motion for leave to amend. The circuit court ultimately dismissed Yoshimura's first amended petition for lack of jurisdiction, because it did not meet the requirements of section 12-203 of the Revised Charter.

Yoshimura filed a motion for reconsideration, arguing that the City could not require handwritten signatures and residence addresses under section 12-203 of the Revised Charter without first engaging in rulemaking under HRS Chapter 91 (2008) (the Hawai‘i Administrative Procedures Act, or "HAPA") or otherwise setting forth its position in a written policy. The circuit court denied the motion for reconsideration, concluding Yoshimura raised evidence and arguments that could have been raised earlier in the litigation, and that the motion lacked merit in any event. The circuit court then entered its final judgment.

On appeal, Yoshimura argues that electronic signatures are valid under the law pursuant to HRS § 489E-7 (2008). He also argues that, to the extent HRS § 489E-18 (2008) provides a government agency discretion to reject electronic signatures, the government agency must first promulgate rules under HAPA, or otherwise set forth a written policy, detailing the circumstances under which electronic signatures may be rejected. Yoshimura argues the circuit court erred in concluding HRS § 489E-18 "trumped" HRS § 489E-7 ’s general validation of electronic signatures. He asserts the circuit court erred in dismissing his petition for lack of jurisdiction, denying his motion for leave to file a second amended petition, and denying his motion for reconsideration of those rulings.

Two months after oral argument in this case, Steven Alm was elected as City Prosecutor. He was sworn into office in January 2021. Kaneshiro thereafter moved to dismiss this appeal as moot. As this case falls under the "public interest" exception to the mootness doctrine, we denied the motion to dismiss and now proceed to address the merits of this appeal. We hold that Hawai‘i's UETA does not apply to the petitions for impeachment in this case, principally because application of the UETA requires the consent of the parties to transact governmental business electronically. In this case, the City did not consent to be a party to a "transaction" between it and Yoshimura for the purpose of certifying whether petition signatories were duly registered voters of the City and County of Honolulu. Therefore, the City was not required, under the UETA, to have developed some form of written policy regarding the use and acceptance of electronic signatures. We further hold that the City was not required, under HAPA, to have promulgated a rule concerning electronic signatures. We therefore affirm the circuit court's final judgment.

II. Background

A. Petition for impeachment, Yoshimura's correspondence with Corporation Counsel and the Office of Elections, and first amended petition

1. Petition for impeachment

On December 18, 2018² , the circuit court received Yoshimura's "Petition for Impeachment of Prosecuting Attorney Keith M. Kaneshiro Pursuant to Sec. 12-203 of the Honolulu City Charter etc[.]" ("petition for impeachment"). Yoshimura had circulated an online petition on the platform Change.org alleging that Kaneshiro had committed malfeasance, misfeasance, or nonfeasance in office by failing to take appropriate action with respect to his deputy prosecutors, including Katherine Kealoha.³ At the time Yoshimura circulated his initial online petition, Kealoha had been indicted in federal court,⁴ and Yoshimura believed two other deputy prosecutors had received subject letters.⁵ Yoshimura's online petition went on to state that Kaneshiro himself had received a target letter but failed to inform officials of the City and County of Honolulu and State of Hawai‘i, choosing instead to remain on the job. Yoshimura asserted that Kaneshiro's continued presence on the job would jeopardize the integrity of past and present criminal prosecutions.

Yoshimura attached an Excel spreadsheet listing the names, cities, states, and zip codes of 861 people represented to have electronically signed the Change.org online petition. In a declaration appended to the petition for impeachment, Yoshimura "acknowledge[d] that some of the individuals that have signed the petition may NOT be duly registered voters in the City and County of Honolulu." There were alleged signatories identified as being from other counties in the State of Hawai‘i, as well as from other states and countries. Additionally, while some signatories listed their city as somewhere within the City and County of Honolulu, they were identified only by their initials or by incomplete or false names (e.g., "J S," "Donald Duck," "1L").

2. Yoshimura's correspondence with Corporation Counsel and the Office of Elections

Sometime after filing the petition for impeachment, it appears Yoshimura became concerned about whether the City Clerk would certify the signatories as duly registered voters of the City and County of Honolulu. In February 2019, Yoshimura's counsel wrote to the City and County of Honolulu's Corporation Counsel Paul S. Aoki, acknowledging that the City Clerk's office "certif[ies] that individuals signing the petition are voters," and that "certification of the individuals who...