Yoshimura v. Kaneshiro. ( 2021 )

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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
01-FEB-2021
09:12 AM
Dkt. 47 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
TRACY YOSHIMURA, Plaintiff-Appellant,
vs.
KEITH KANESHIRO, Defendant-Appellee.
________________________________________________________________
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; S.P. NO. 1SP181000465)
FEBRUARY 1, 2021
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
1 The Honorable Jeffrey P. Crabtree presided.
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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
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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
Hawaiʻi Revised Statutes (“HRS”) Chapter 489E (2008), Hawaiʻi’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
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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
Hawaiʻi Administrative Procedures Act, or “HAPA”) or otherwise
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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
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now proceed to address the merits of this appeal. We hold that
Hawaiʻi’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
2 The petition for impeachment was filed December 20, 2018.
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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 Hawaiʻi, 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
3 Yoshimura also named two additional deputy prosecutors he believed had
received target letters. One had not.
4 Kealoha has since been convicted and sentenced on federal charges.
5 See supra note 3.
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County of Honolulu.” There were alleged signatories identified
as being from other counties in the State of Hawaiʻi, 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 signed the
petition . . . may be an issue.” Although the Change.org
petition collected only name, city, and zip code information,
Yoshimura’s counsel “propos[ed] to collect the following
information from signatories: full name, last 4 digits of
Social Security Number, and zip code of the person’s residence
address.” Counsel explained that Yoshimura preferred to keep
residence addresses of signatories private. Deputy Corporation
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Counsel Yost responded that the City Clerk would await
instructions, if any, from the circuit court from an upcoming
status conference.
In March 2019, Yost wrote to Yoshimura’s counsel to inform
him that “[p]etitions that the City Clerk reviewed in the past
to confirm voter registration have generally included the
following information: (1) date of signature; (2) signature;
(3) printed name; and (4) residence address.” She also pointed
out, “As you know, the City Clerk has not received or been
instructed to certify or review any petition” in this case. She
repeated her intention to await instructions, if any, from the
circuit court.
In April 2019, the parties and their attorneys, as well as
Yost, met in person to discuss the City Clerk’s certification
process. That meeting was memorialized in separate letters from
Yoshimura’s counsel and Yost, wherein the City’s position was
clear: the City Clerk required signatories’ residence addresses
and would not accept electronic signatures. In a memorandum in
support of an April 2019 status conference, Kaneshiro informed
the court that he supported and joined the City’s position, as
set forth in an April 18, 2019 letter from Yost. The City
formalized its opinion in an April 23, 2019 letter authored by
Yost. The City explained that the City Clerk checks residence
addresses against the Statewide Voter Registration System to
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confirm that the signatory is a duly registered voter of the
city. The City explained that it also required handwritten
signatures to “detect[] fraudulent or questionable signatures.”
The City cited to HRS § 489E-18(a) and (c) for the proposition
that it is not required to permit the use of electronic
signatures and can “determine whether, and the extent to which,
it [would] accept . . . electronic signatures . . . and rely
upon . . . electronic signatures.” The City also stated in its
letter that Yoshimura’s petition had not been presented to the
City Clerk for certification of voter registration status of the
signatories to the online petition.
3. First amended petition
On April 12, 2019, Yoshimura filed his “First Amended
Petition for Impeachment of Prosecuting Attorney Keith M.
Kaneshiro Pursuant to Sec. 12-203 etc.” (“first amended
petition”). In the first amended petition, Yoshimura again
acknowledged that not all signatories to his online petition
were registered voters of the City and County of Honolulu. He
stated that when he was “unable to obtain a formal legal opinion
from the City Clerk or Corporation Counsel’s office regarding
the validity of electronic signatures, nor the information
needed to verify those signatures as duly registered voters of
the City and County of Honolulu,” he sought the assistance of
State Senator Maile M. Shimabukuro and Nedielyn Bueno, a “Voter
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Services” employee of the State Office of Elections, to
determine what information was necessary to verify the identity
of a voter during the voter registration process. He attached
an email string between Shimabukuro and Bueno as an exhibit. In
the email string, Senator Shimabukuro wrote to Scott Nago, the
director of the Office of Elections, on March 25, 2019, to ask
“whether a voter’s registration status can be verified via their
first and last name, signature, last 4 digits of [their Social
Security number], and zip code.” She also asked whether a
driver’s license number could be used in lieu of the last four
digits of a Social Security number.
Bueno responded the following day, stating that the
registration status of a voter is verified using a Hawaiʻi
driver’s license number or Hawaiʻi state identification number
(or, if none, the last four digits of an individual’s Social
Security number), along with name, date of birth, and residence
address. She stated that a signature “is not used to verify
voter registration status,” but it is used to validate a voter’s
returned absentee ballot.
Senator Shimabukuro sent a follow-up email two days later
relaying “a constituent’s” question asking whether residence
addresses were necessary to verify voter registration, given
“issues such as identity theft and other personal ‘safety’
issues.” Four days later, on April 1, 2019, Bueno responded by
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stating that the information required to register to vote online
is full name, date of birth, last four digits of a Social
Security number, and driver’s license or state identification
number. She clarified a day later that a paper voter
registration must include the last four digits of a Social
Security number only if the registrant does not have a driver’s
license or state identification number. Thus, Bueno did not
answer the voter registration verification question, instead
listing what information was necessary for voter registration.6
Yoshimura represented in his first amended petition that,
after receiving this information from Senator Shimabukuro and
Bueno, he started “re-collecting” electronic signatures on
DocuSign, a different online platform, asking signatories for
their (1) full names; (2) birthdates; (3) last four digits of
their Social Security number, driver’s license number, or state
identification number; and (4) zip code.
The content of the re-circulated petition was attached as
another exhibit to the first amended petition. The re-
circulated petition clarified that one of the deputy prosecuting
attorneys Yoshimura had named had not received a subject letter,
6 Yoshimura repeatedly represented throughout these proceedings and on
appeal that Bueno told him verifying voter registration status required a
signatory’s full name, date of birth, last four digits of a Social Security
number, and driver’s license or state identification number. As Kaneshiro
and the City repeatedly counter-argued throughout these proceedings, Bueno
was referring to the requirements for voter registration in the first
instance.
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contrary to Yoshimura’s belief at the time he circulated his
initial online petition. The petition asked signatories to sign
the following acknowledgement: “I have read the attached
Impeachment Petition, and hereby acknowledge by providing my
signature and other pertinent information below, that I support
the effort to Impeach Prosecutor Keith Kaneshiro, and do
solemnly swear that I am a registered voter in the City and
County of Honolulu.” Signatories were then instructed to enter
the following information: (1) full name, (2) Hawaiʻi driver’s
license number, or Hawaiʻi state identification card number, or
last four digits of their Social Security number, (3) date of
birth, (4) zip code, (5) date, and (6) signature. The last page
of the re-circulated online petition contained Yoshimura’s full
name, the last four digits of his Social Security number, his
date of birth, his zip code, and his electronic signature
(denoted by a frame around his name labeled “DocuSigned by:).”
Unlike the initial impeachment petition filed on December 20,
2018, which attached as an exhibit the Excel spreadsheet of the
861 signatories to the Change.org petition, the first amended
petition did not attach as an exhibit any signatory information
(other than Yoshimura’s) from the re-circulated impeachment
petition.
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B. Motion to dismiss, opposition, and reply
1. Kaneshiro’s motion to dismiss
In May 2019, Kaneshiro filed a “Motion to Dismiss First
Amended Petition for Impeachment of Prosecuting Attorney etc.”
(“motion to dismiss”). He argued that no authority permitted
the filing of the first amended petition where the initial
petition was defective ab initio. He contended Yoshimura’s
initial petition for impeachment was defective because the City
Clerk had not certified that his petition contained 500
signatures of registered voters of the City and County of
Honolulu prior to the filing of his impeachment petition, as
required by section 12-203 of the Revised Charter. Kaneshiro
argued that Yoshimura should have dismissed the defective
initial petition then re-filed an impeachment petition complying
with section 12-203 of the Revised Charter. For the same
reason, Kaneshiro argued that the first amended petition must be
dismissed for lack of subject matter jurisdiction or for failure
to state a claim. Kaneshiro included as an exhibit Yost’s April
23, 2019 letter from the City to counsel and the court, advising
that the City requires a handwritten signature and residence
address to determine whether a signatory is a duly registered
voter of the city, as required under section 12-203 of the
Revised Charter. Kaneshiro next pointed out that Yoshimura’s
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first amended petition was supported by just Yoshimura’s
signature.
2. Yoshimura’s memorandum in opposition to Kaneshiro’s
motion to dismiss
In his memorandum in opposition to Kaneshiro’s motion to
dismiss, Yoshimura newly argued that section 12-203 of the
Revised Charter contains no requirement that the re-circulated
impeachment petition’s signatures “need to be certified by the
[City] Clerk at any[]time during this Impeachment process,”
including before the petition is filed in circuit court.
As to whether amendment of an impeachment petition is
permissible, Yoshimura argued that HRCP Rule 15(a)(1) (2012)
permitted him to amend his impeachment petition once as a matter
of course at any time before a responsive pleading is served,
and the first amended petition was filed prior to any filings
from Kaneshiro.
Lastly, Yoshimura argued the City must accept electronic
signatures and cannot require residence addresses. He stated
that his initial Change.org petition was supported by at least
500 electronic signatures of duly registered Honolulu voters.
He pointed to HRS § 489E-7(d), which states, “If a law requires
a signature, an electronic signature satisfies the law.” As to
the City’s reliance on HRS § 489E-18 as authority to refuse to
accept electronic signatures, Yoshimura argued the statute
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required the City to have a pre-existing ordinance, charter
provision, or written policy on acceptance or rejection of
electronic signatures. To Yoshimura, the City’s April 23, 2019
letter setting forth its position that his impeachment petition
must contain handwritten signatures “‘electively’ pick[ed] an
unwritten policy out of the sky.”
Yoshimura asked the circuit court to deny Kaneshiro’s
motion to dismiss. He also requested that, if the circuit court
found the form of his impeachment petition to be incorrect, he
should be granted time to conform the petition.
3. Kaneshiro’s reply
In his reply memorandum, Kaneshiro argued that section
12-203 of the Revised Charter requires 500 signatures of “duly
registered voters” of the City and County of Honolulu, which
requires verification by the City Clerk, as a prerequisite to
filing. Kaneshiro also pointed out that Yoshimura sent numerous
inquiries to the City asking what information the City Clerk
would need to certify his petition, undercutting Yoshimura’s
belated argument that certification by the City Clerk is not
necessary.
Kaneshiro next argued that the court and parties had always
contemplated certification of the impeachment petition(s),
consistent with Hawaiʻi law, specifically, based on this court’s
order in In the Matter of Impeachment of Honolulu City
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Councilmember Rene Mansho, No. 24858 (2002). In the Mansho
case, this court was presented with a petition to impeach a
councilmember, pursuant to section 12-202 of the Revised Charter
(1993). At that time, this court served as “a board of
impeachment in any proceeding for the removal of a
councilmember,” upon presentation of a “charge . . . set forth
in writing in a petition for impeachment signed by not less than
one thousand duly registered voters of the council district for
the removal of a council member, and said signatures shall be
necessary only for the purpose of filing the petition.” Upon
receipt of the petition, this court filed an order stating that
one “preliminary issue” was “whether the signatures in support
of the petition are the signatures of registered voters in the
Council District 1 of the City and County of Honolulu.” This
court ordered the petitioners to “submit a copy of the petition
with its signature pages to the Clerk of the City and County of
Honolulu. The Clerk of the City and County of Honolulu shall,
within 90 days thereafter, review the signatures and submit a
declaration concerning whether the petition contains at least
one thousand signatures of duly registered voters from Council
District 1 of the City and County of Honolulu.”
Kaneshiro ended his reply memorandum urging the circuit
court to dismiss Yoshimura’s first amended petition for lack of
jurisdiction, or for failure to state a claim, because the City
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Clerk had not certified the petition(s), and the petition(s) on
the record would not have been certified because they did not
contain handwritten signatures and residence addresses, as the
City stated the City Clerk would require under section 12-203 of
the Revised Charter.
The circuit court held a hearing on the motion to dismiss
on June 10, 2019 and denied the motion because Yoshimura had
filed a motion for leave to amend (described in greater detail
in the next section) that was still pending at that time.
C. Yoshimura’s motion for leave to amend petition and
Kaneshiro’s opposition and cross-motion to strike
Four days after Kaneshiro had filed his motion to dismiss,
Yoshimura filed a “Motion for Leave to Amend Petition and to
Name City Clerk as Respondent in a Declaratory Judgment
Complaint” (“motion for leave to amend”). Yoshimura’s counsel
stated that he sought to name the City Clerk as a respondent to
a declaratory judgment action, because the City had taken a
position that the City Clerk would require signatories’
residence addresses and not accept electronic signatures, when
there was no pre-existing City policy stating the same.
Yoshimura appended a proposed Second Amended Petition as an
exhibit. He sought a declaration from the court requiring the
City Clerk to accept an impeachment petition with electronic
signatures and without residence addresses of signatories.
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Kaneshiro filed an “Opposition and Cross-Motion to Strike
Petitioner’s Motion for Leave to Amend Petition and to Name City
Clerk as a Respondent in a Declaratory Judgment Complaint, Filed
on May 6, 2019” (“opposition and cross-motion to strike”). In
addition to reiterating the argument that the circuit court
lacked jurisdiction (over the petition for impeachment, the
first amended petition, and any motion for leave to amend to
file a second amended petition for impeachment), Kaneshiro
argued there was no authority for amending a petition for
impeachment, adding a defendant, or combining a petition for
impeachment with a complaint for declaratory judgment.
Yoshimura filed a “Memorandum in Opposition to Keith M.
Kaneshiro’s Cross-Motion to Strike Petitioner’s Motion for Leave
to Amend and to Name City Clerk as a Respondent in a Declaratory
Judgment Complaint.” In it, he asserted that his re-circulated
DocuSign petition did have over 500 signatures (but none were
attached to the opposition or included in this record).
Kaneshiro filed a “Reply in Support of Cross-Motion to
Strike Petitioner’s Motion for Leave to Amend Petition and to
Name City Clerk as a Respondent in a Declaratory Judgment
Complaint, Filed on May 6, 2019,” arguing that leave to amend
should be denied based on futility, because the proposed second
amended petition did not cure the jurisdictional defect of the
prior amendment (because the petition(s) did not contain 500
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signatures of duly registered Honolulu voters), and because
Yoshimura’s theory of declaratory relief (that HRS § 489E-7
requires the City Clerk to accept electronic signatures) is
meritless, because HRS § 489E-18(a) and (c) provide the City
with discretion to refuse to accept electronic signatures.
The circuit court held a hearing on the motion for leave to
amend and the cross-motion to strike the motion for leave to
amend on June 24, 2019. At that hearing, Yoshimura acknowledged
“that the proposed second amended petition relies 100 percent on
the validity of electronic signatures,” with respect to both the
Change.org and DocuSign petitions. He also acknowledged that
there was no dispute “that the City is requiring wet signatures
for this petition[.]” He also conceded, “The second amended
[petition] does not include residence addresses.”
Yoshimura nevertheless went on to argue that the “City
Council must determine” in writing, and ahead of time (not in
response to an inquiry), whether to accept electronic
signatures.” Without a written “across-the-board” policy,
Yoshimura argued the City’s position was ad hoc and “pull[ed]
out of the sky.” By minute order, the circuit court denied
Yoshimura’s motion for leave to amend. Its reasoning was set
forth in its Findings of Fact, Conclusions of Law, and Order,
summarized next.
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D. Circuit court’s findings of fact, conclusions of law, and
order
On August 19, 2019, the circuit court filed its “Findings
of Fact, Conclusions of Law, and Order (1) Denying Petitioner’s
Motion for Leave to Amend Petition and to Name City Clerk as a
Respondent in a Declaratory Judgment Complaint, Filed May 6,
2019; (2) Denying Respondent Keith M. Kaneshiro’s Cross-Motion
to Strike Petitioner’s Motion for Leave to Amend Petition and to
Name City Clerk as a Respondent in a Declaratory Judgment
Complaint, Filed on May 17, 2019; and (3) Dismissing Case for
Lack of Jurisdiction.” Among the findings of fact (“FOFs”) and
conclusions of law (“COLs”) relevant to this appeal, the circuit
court stated the following:
[FOF]4. Regardless of the exact form of the actual or
proposed petition(s), the court finds at no point in this
case did Petitioner submit 500 “wet” hand-written
signatures along with reasonably verifiable information on
whether the “signers” were currently duly registered voters
in the City & County of Honolulu.
[FOF]5. The court finds there is no way to tell based on
the record in this case whether the actual or proposed
“digital signers” of the petitioner(s), were all different
people, and whether they were all duly registered voters of
the city of Honolulu at the time they “signed”
electronically.
[FOF]6. The parties agreed on the record that on behalf of
the City, the Department of the Corporation Counsel issued
its written position in a letter dated April 23, 2019,
signed by Deputy Corporation Counsel Moana Yost. The
letter is an exhibit in the record. The City’s position is
that digital signatures are not acceptable for the actual
or proposed petition(s) to impeach Mr. Kaneshiro. More
specifically, the City’s reason (as stated in its 4/23/19
letter) for not allowing digital signatures is the City’s
interest in detecting fraudulent or questionable
signatures. In order to determine the (required) voter
registration status, the City is requiring a) the signer’s
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full legible name; b) a hand-written signature; and c)
residence address (presumably to determine if the signer is
currently a resident of the City of Honolulu, as opposed to
when they last registered to vote or last updated their
address in the voter rol[l]s).
[COL]7. The court concludes the language of Section 12-203
means the petition to impeach Mr. Kaneshiro must have the
required 500 signatures of duly registered voters of
Honolulu County when the petition is filed. Because no
actual or proposed petition for impeachment in this case
was or would be signed by 500 duly[]registered voters in
the City, the actual and proposed petition(s) did not
satisfy the requirements of City Charter section 12-203.
[COL]8. The court finds and concludes it is not
unreasonable or discriminatory for the City to take the
position that fraudulent or questionable signatures are a
valid concern for online petitions to impeach duly elected
public officials. See Perotka v[.] Cron[i]n, 117 Haw[aiʻi]
323 (2008).
[COL]9. Petitioner argues the City must accept digital
signatures pursuant to HRS [§] 489E-7, which among other
things provides that if a law requires a signature, an
electronic signature satisfies the law. Per the same
4/23/l9 letter from Corporation Counsel, the City’s
position is that it is not required to accept digital
signatures for impeachment petitions, because HRS
[§] 489E-l8(c) gives it the discretion to allow or not
allow digital signatures. The court concludes this
discretionary “carve out” in 489E-18(c) expressly applies
to government entities, so in essence HRS [§] 489E-18(c)
can trump HRS [§] 489E-7 when a government entity is
involved.
[COL]10. In view of HRS [§] 489E-18(c), and given the
City’s concern with both a) handwritten versus electronic
signatures, and b) ability to verify a signature is from a
duly registered voter, the court respectfully rejects
Petitioner’s argument that the City must accept digital
signatures without residential addresses for impeachment
petitions pursuant to HRS [§] 489E-7.
[COL]11. Petitioner also argued that the City must
formally adopt its position, by rule or other official
enactment, that it will not accept digital signatures for
impeachment petitions. The parties agreed on record that
the City’s position is as expressly stated in Corporation
Counsel’s 4/23/19 letter which is part of the record. The
court is not aware of any legal requirement that the City’s
position on this finite issue must be formally enacted in
order to be effective, and therefore declines to adopt
Petitioner’s position.
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[COL]12. Respondent argued in his motion to strike that
since the original petition was defective, the court never
had jurisdiction to even consider the first amended
petition or the second (proposed) amended petition. The
court respectfully disagrees. As with the court’s ruling
on Respondent’s motion to dismiss, the court concludes it
has jurisdiction to rule on the First Amended Petition and
the Proposed Second Amended Petition. The court’s
reasoning is that applying a policy of “once defective,
always defective, and petitioner must file a new petition
with a new lawsuit” does not comport with modern rules of
civil procedure which permit amendment of even
jurisdictionally defective pleadings if the proposed
amendment is not futile. This issue was not discussed in
the pre-statehood cases cited by Respondent, and so those
cases are non-binding on the particular issue presented
here.
[COL]13. Here, the proposed Second Amended Petition has
the same defects as the two earlier petitions as described
above. Since the court concludes the City has the
discretion to reject the electronic signatures in this
case, and since the proposed Second Amended Petition
suffers from the same defects as the prior petitions, the
court therefore concludes the proposed petition is futile,
and the motion to amend is therefore denied.
[COL]14. Since there is no valid petition for impeachment
before the court that complies with Section 12-203 of the
city charter, as determined by the City’s discretionary and
valid requirements regarding actual signatures from
demonstrably duly registered voters, the court hereby
dismisses this case for lack of jurisdiction.
The circuit court then denied Yoshimura’s motion for leave to
amend his petition to name the City Clerk as a respondent in a
declaratory judgment complaint, denied Kaneshiro’s cross-motion
to strike Yoshimura’s motion for leave to amend, and dismissed
this case for lack of jurisdiction.
E. Yoshimura’s motion for reconsideration and the circuit
court’s order of denial
Yoshimura then filed a motion for reconsideration. He
argued that the federal Electronic Signatures in Global and
National Commerce Act (the “ESIGN Act,” 15 U.S.C. § 7001 et
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seq.) was an additional authority requiring the City to
determine the extent to which it will accept electronic
signatures on impeachment petitions.7
Yoshimura next argued that the City was required to
promulgate a rule under HAPA (HRS chapter 91) as to when it
would accept or reject electronic signatures on impeachment
petitions. He noted that HRS § 91-1 (2008) defines “rule” as an
“agency statement of general or particular applicability and
future effect that implements, interprets, or prescribes law or
policy, or describes the organization, procedure, or practice
requirements of any agency,” but excludes the “internal
management” of an agency. He went on to cite Application of
Terminal Transportation, Inc., 54 Haw. 134, 504 P.2d 1214(1972), for the proposition that, “in the absence of clear
legislative direction to the contrary, the court will not
interpret HAPA so as to give government even the appearance of
being arbitrary or capricious.” He stated that the City’s ad
hoc decision not to accept electronic signatures on his
impeachment petition was arbitrary.
7
The Federal ESIGN Act does not apply in this case. 15 U.S.C.
§ 7001(a)(1) states, “Notwithstanding any statute, regulation, or other rule
of law (other than this subchapter and subchapter II), with respect to any
transaction in or affecting interstate or foreign commerce -- (1) a
signature, contract, or other record relating to such transaction may not be
denied legal effect, validity, or enforceability solely because it is in
electronic form . . . .” (Emphasis added). The impeachment of a City
prosecutor does not affect interstate or foreign commerce. Therefore, this
opinion does not further discuss the ESIGN Act.
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Yoshimura next argued that leave to amend a petition should
have been “freely given,” citing Keawe v. Hawaiian Electric
Company, 65 Haw. 232, 649 P.2d 1149 (1982), absent any apparent
or declared reason, such as undue delay, bad faith, or dilatory
motive on the part of the movant, or a repeated failure to cure
deficiencies in the complaint.
Lastly, Yoshimura cited Anderson v. Bell, 234 P.3d 1147(Utah 2010), as a case in which electronic signatures were
accepted on a petition to qualify a candidate for an election.
He concluded by asking the circuit court to grant his motion for
reconsideration, vacate its dismissal order, require the City to
accept electronic signatures and to certify his petition, and
allow him to file his second amended petition.
In his memorandum in opposition to Yoshimura’s motion for
reconsideration, Kaneshiro argued that three independent reasons
supported denying Yoshimura’s motion for reconsideration.
First, the circuit court’s jurisdiction was never triggered
because Yoshimura never presented it with a petition signed by
over 500 duly registered Honolulu voters. Second, Yoshimura’s
motion for reconsideration did not meet the requirements of HRCP
Rule 59(e) (2000), which permits reconsideration of a court’s
order where the parties “present new evidence or arguments that
could not have been presented earlier.” For example, Kaneshiro
argued that Yoshimura’s HAPA argument was impermissibly raised
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for the first time in his motion for reconsideration. Third,
Kaneshiro stated Yoshimura’s arguments were meritless in any
event.
Lastly, Kaneshiro distinguished the Anderson case as
involving a state statute that required acceptance of electronic
signatures. He also pointed out that Anderson was an election
nomination proceeding, and Utah liberally construes its election
statutes.
In Yoshimura’s reply, he asserted he did have 500
signatures on his petition (referring to the initial Change.org
petition, which he represented he “never abandoned”), and that
the issue was whether the City Clerk would accept electronic
signatures. Yoshimura asked the court to reconsider its order
and allow him to “submit a Second Amended Petition which will be
supported by at least 500 electronic signatures.”
On October 2, 2019, the circuit court denied Yoshimura’s
motion for reconsideration. The court’s order stated it “still
does not have jurisdiction” over the petition and that
“everything argued in the Motion [for reconsideration] was or
could have been raised earlier.” Nevertheless, the court
concluded that, on the merits, it remained unpersuaded.
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F. Notice of appeal
On November 15, 2019, the circuit court entered its final
judgment. Yoshimura timely appealed. This court granted
transfer of the appeal on April 6, 2020.
III. Standards of Review
A. Interpretation of the Revised Charter of the City and
County of Honolulu and the Hawaiʻi Revised Statutes
Statutory interpretation is a question of law reviewable de
novo. This court’s statutory construction is guided by
established rules:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.
When interpreting a municipal ordinance, this court
applies the same rules of construction applied to statutes.
Rees v. Carlisle, 113 Hawaiʻi 446, 452, 153 P.3d 1131, 1137
(2007) (citations omitted).
B. Conclusions of law
“[T]he standard of review applicable to the circuit court’s
conclusions of law is the right/wrong standard.” Mehau v. Reed,
76 Hawaiʻi 101, 107, 869 P.2d 1320, 1326 (1994).
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C. Motion for leave to amend
“The grant or denial or leave to amend under Rule 15(a) is
within the discretion of the trial court and is subject to
reversal on appeal only for an abuse of discretion.” Bishop
Trust Co. v. Kamokila Dev. Corp., 57 Haw. 330, 337, 555 P.2d
1193, 1198 (1976).
D. Motion for reconsideration
“HRCP Rule 59(e) motions for reconsideration are reviewed
under the abuse of discretion standard. The trial court abuses
its discretion when it clearly exceeds the bounds of reason or
disregards rules or principles of law or practice to the
substantial detriment of a party litigant.” Kaneohe Bay
Cruises, Inc. v. Hirata, 75 Hawaiʻi 250, 258, 861 P.2d 1, 6
(1993) (citation omitted).
IV. Discussion
We first address Kaneshiro’s motion to dismiss filed after
his successor was sworn in on January 2, 2021. Kaneshiro
asserts this case must be dismissed on the basis of mootness.
As we preliminarily explain, based on the public interest
exception to the mootness doctrine, we address the merits of the
issues raised on appeal.
In his opening brief, Yoshimura argues broadly that
electronic signatures are “an important component of direct
democracy” in the digital age. He notes there are only three
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other cases nationwide analyzing the use of electronic
signatures to effect direct democracy: Anderson, 234 P.3d 1147;
Benjamin v. Walker, No. 16-0228 (W.Va. Apr. 19, 2020); and Ni v.
Slocum, 196 Cal. App. 4th 1636 (Cal. App. 1st Dist. 2011). This
case would be the fourth.
Yoshimura raises the following points of error on appeal:
A. [The circuit court] erred when [it] found, in
Conclusion of Law #9, that: “489E-18(c) expressly applies
to government entities, and can trump HRS [§] 489E-7 when a
government entity is involved,” because HRS § 489E-18(a)
requires that each governmental agency determine whether,
and the extent to which, it will send and accept electronic
records and electronic signatures, and the City failed to
make such a determination pursuant to and/or in compliance
with the requirements mandated by Chapter 91, the Hawaii
Administrative Procedures Act.
. . . .
B. [The circuit court] erred when [it] found, in
Conclusion of Law #10, that: “In view of HRS
[§] 489E-18(c), and given the City’s concern with both a)
handwritten versus electronic signatures, and b) ability to
verify a signature is from a duly registered voter, the
court respectfully rejects Petitioner’s argument that the
City must accept digital signatures without residential
addresses for impeachment petitions pursuant to HRS
[§] 489E-7.”
. . . .
C. [The circuit court] erred when [it] found, in
Conclusion of Law #11, that: “Petitioner also argued that
the City must formally adopt its position, by rule or other
official enactment, that it will not accept digital
signatures for impeachment petitions. . . . The court is
not aware of any legal requirement that the City’s position
on this finite issue must be formally enacted in order to
be effective, and therefore declines to adopt Petitioner’s
petition.”
. . . .
D. [The circuit court] erred when [it] found, in
Conclusion of Law #13, that: “Since the court concludes
the City has the discretion to reject the electronic
signatures in this case, and since the proposed Second
Amended Petition suffers from the same defects as the prior
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petitions, the court therefore concludes the proposed
petition is futile, and the motion to amend is therefore
denied.”
. . . .
E. [The circuit court] erred when [it] denied Mr.
Yoshimura’s motion for reconsideration which asserted: (A)
that the Court erred in focusing on HRS § 489E-18(c), which
should have been read together with the entirety of Chapter
489E, because § 489E-18(a) requires each governmental
agency of this State to determine whether, and . . . the
extent to which, it will send and accept electronic records
and signatures; (B) the federal ESIGN Act mandates that a
state make a determination under what circumstances it
would accept electronic signatures and thus any such
exception to the acceptance of electronic signatures must
be set forth in writing, (C) the City is required, by
Chapter 91 of the Hawaii Revised Statutes (the Hawaii
Administrative Procedures Act, “HAPA”), to make this
determination in a manner consistent with the rulemaking
provisions of the HAPA; and (D) as the City has failed to
adopt rules in a manner that is in compliance with
guidelines and requirements set forth in HAPA and
§ 489E-18(a) to determine whether, and the extent to which,
it will send and accept electronic records and electronic
signatures, the City is prohibited from asserting that it
is not required to use or permit the use of electronic
records or signatures.
Yoshimura’s first three points of error can be combined as
challenging the circuit court’s conclusion that, under HRS
§ 489E-18, the City has the discretion to refuse to accept
electronic signatures unaccompanied by residence addresses,
without first promulgating a written policy, by rulemaking under
HAPA or otherwise. Yoshimura’s next point of error is that the
circuit court abused its discretion by denying his motion for
leave to amend. Yoshimura’s last point of error is that the
circuit court abused its discretion in denying his motion for
reconsideration. Each issue will be discussed in turn below.
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A. The public interest exception to the mootness doctrine
applies
After his successor was sworn in, Kaneshiro filed a motion
to dismiss this case on the basis of mootness. Kaneshiro points
out that Yoshimura seeks impeachment or removal of Kaneshiro
from office and that as he no longer holds office, the matter is
moot.
As explained in In re Application of Maui Electric Company,
Ltd., 141 Hawaiʻi 249, 408 P.3d 1 (2017), however, there is a
“public interest” exception to the mootness doctrine. “This
court reviews three factors in analyzing the public interest
exception: (1) the public or private nature of the question
presented, (2) the desirability of an authoritative
determination for future guidance of public officers, and (3)
the likelihood of future recurrence of the question.” 141
Hawaiʻi at 256-57, 408 P.3d at 8-9 (internal quotation marks and
citations omitted.8
This situation triggers the public interest exception, as
(1) there is a public interest in addressing procedures
8 This court has rejected the notion that the “public interest”
exception is part of, or indistinguishable from, the “capable of repetition
yet evading review” exception to the mootness doctrine. See, e.g., Moana v.
Wong, 141 Hawaiʻi 100, 107 n.9, 405 P.3d 536, 543 n. 9 (2017) (“Although the
‘capable of repetition, yet evading review’ exception has ‘merged at times’
with the similar public interest exception to the mootness doctrine, ‘they
are, in fact, “separate and distinct.”’”); Doe v. Doe, 116 Hawaiʻi 323, 327
n.4, 172 P.3d 1067, 1071 n.4 (2007) (same); Kahoʻohanohano v. State, 114
Hawaiʻi 302, 333 n.23, 162 P.3d 696, 727 n.23 (2007) (same).
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applicable to impeachment of public officials; (2) determination
of issues raised in this case would assist public officers in
the future; and (3) the issues raised in this case are likely to
recur.
Thus, although the matter of Kaneshiro’s impeachment is now
moot, the public interest exception to the mootness doctrine
applies, and we address the merits of the issues on appeal.
B. The City can require handwritten signatures and residence
addresses in order to certify signatories on an impeachment
petition under section 12-203 of the Revised Charter
1. Arguments on appeal
a. Yoshimura’s opening brief
Yoshimura argues that the circuit court erred in finding
that HRS § 489E-18(c), which “does not require a governmental
agency of this State to use or permit the use of electronic
records or electronic signatures,” can “trump” HRS § 489E-7,
which states that electronic signatures generally satisfy the
law. He maintains the circuit court failed to read HRS chapter
489E in its entirety. Specifically, he points to HRS
§ 489E-18(a) to argue that the City was required to determine
whether and to what extent it will accept electronic records and
signatures. HRS § 489E-18 is titled “Acceptance and
distribution of electronic records by governmental agencies.”
Subsection (a) provides the following:
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Except as otherwise provided in section 489E-12(f), each
governmental agency of this State shall determine whether,
and the extent to which, it will send and accept electronic
records and electronic signatures to and from other persons
and otherwise create, generate, communicate, store,
process, use, and rely upon electronic records and
electronic signatures.
Yoshimura contends the circuit court failed to consider the
Anderson case, in which the Utah Supreme Court held that the
Lieutenant Governor was required to accept electronic signatures
on a certificate of nomination, under Utah’s UETA, which is
similar to Hawaiʻi’s. He urges this court to follow the Anderson
court’s reasoning.
Yoshimura next asserts the City could have fulfilled HRS
§ 489E-18(a)’s requirements by promulgating a written policy to
avoid an arbitrary or capricious decision on accepting or
rejecting electronic signatures. Yoshimura argues this could
have been accomplished through rulemaking under HAPA.
Yoshimura next argues the circuit court erred in accepting
the City’s fraud-prevention rationale to require an impeachment
petition to contain signatories’ handwritten signatures and
residence addresses. He states the City’s “‘concern’ of ‘fraud’
is absurd given the existence of the ESIGN Act, and the
acceptance of electronic signatures throughout the United
States.” He again cites to the Anderson case, this time for the
proposition that electronic signatures “may be a better
deterrent to candidate fraud because an electronic signature
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incorporates readily identifiable personal, but not-public,
information.” Anderson, 234 P.3d at 1155 n.7. In this case,
Yoshimura posits, a signatory could be confirmed to be a duly
registered Honolulu voter using the information provided on the
DocuSign petition (full name, date of birth, last four digits of
Social Security number or driver’s license number or state ID
number, and zip code).
b. Kaneshiro’s answering brief
Kaneshiro argues the circuit court did not err in
dismissing Yoshimura’s first amended petition, because “(1) the
City Clerk never certified any of [Yoshimura’s] petitions for
impeachment; (2) the City Clerk has the discretion to reject
electronic signatures in support of impeachment petitions; and
(3) the City Clerk may require residence addresses to certify a
signatory’s eligibility to vote on City matters.”
Kaneshiro first argues that the requirements of section
12-203 of the Revised Charter (that an impeachment petition is
supported by 500 signatories) are jurisdictional and subject to
strict construction, again citing the Mansho order. He argues
the City Clerk is responsible under section 3-301 (2017) of the
Revised Charter and HRS § 11-14 (2008 & Supp. 2012) for
reviewing and certifying impeachment petitions. Kaneshiro
points out Yoshimura never presented any petition to the City
Clerk for certification of signatures. This omission, he says,
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is fatal, and the circuit court did not err in dismissing his
petition.
Kaneshiro goes on to argue that, even if the petition(s)
had been presented to the City Clerk for certification, the
petition(s) would not have been certified, because neither
contained the information necessary to confirm data stored in
the State Voter Registration System: (1) full legible names; (2)
handwritten signatures; or (3) residence addresses. In fact,
Kaneshiro argues, only Yoshimura’s signature supported the
DocuSign petition.
Kaneshiro next argues that the City is not required to
accept electronic signatures in support of a petition for
impeachment under the plain language and legislative history of
Hawaiʻi’s UETA. He quotes HRS § 489E-18(c), which provides that
Hawaiʻi’s UETA “does not require a governmental agency of this
State to use or permit the use of electronic records or
electronic signatures.” He states the legislative history of
Hawaiʻi’s UETA, as well as the National Conference of
Commissioners on Uniform State Laws (“NCCUSL”) commentary to the
model UETA, both state that “the UETA is permissive and does not
mandate governmental use of electronic signatures.” This is
especially so where the parties (here, the City) have not agreed
to be part of an electronic transaction.
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Further, Kaneshiro argues the City Clerk’s determination
does not require rulemaking under HAPA, because the decision to
reject electronic signatures is “merely a reiteration or
clarification of existing law, both state election law and
county impeachment law.” He also notes that the legislature
knows how to mandate further rulemaking in its statutes by
expressly cross-referencing HAPA. He argues that the
legislature would have similarly cross-referenced HAPA in HRS
§ 489E-18 if governmental agencies were required to create rules
as to when they would accept or not accept electronic
signatures. The fact that the legislature did not, Kaneshiro
states, distinguishes this case from Anderson, the case upon
which Yoshimura heavily relies. According to Kaneshiro, the
Utah UETA interpreted in Anderson required state governmental
agencies to promulgate rules to identify which transactions
could be conducted by electronic means, and which transactions
would never be conducted by electronic means. For that reason,
the Lieutenant Governor in Anderson was not authorized to reject
electronic signatures on a nomination petition in the absence of
rules. Kaneshiro footnotes that the Utah legislature promptly
overrode the Anderson opinion by amending the Utah UETA to
require handwritten signatures on petitions. See Utah Code Ann.
§ 20A-9-502.
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Kaneshiro points out that, as a matter of logic,
Yoshimura’s rulemaking argument fails, because the City would
have been in violation of HAPA had it informally decided in this
case that it would accept electronic signatures on impeachment
petitions.
As to whether signatories’ residence addresses are required
on the impeachment petition, Kaneshiro quoted Nader v. Cronin,
Civ. No. 04-00611 ACK-LEK, 2008 WL 1932284, at *27-29 (D. Haw.
May 1, 2008), for the proposition that “providing one’s
residence address is the linchpin of being properly registered.”
c. Yoshimura’s reply brief
In his reply brief, Yoshimura maintains the UETA applies to
his impeachment petition because the transaction at issue is not
between him and the City Clerk; rather it “is between Mr.
Yoshimura, as the circulator of the petition, and the voter
desiring to impeach Mr. Kaneshiro.” Applying the UETA to his
petition, he argues the plain language of HRS § 489E-7(d) (“If a
law requires a signature, an electronic signature satisfies the
law”) reflects the legislature’s “intent . . . to accept, NOT
reject, electronic signatures.” He also argues Kaneshiro and
the circuit court “ignored” the plain, mandatory language of HRS
§ 489E-18(a), that “each governmental agency of this State shall
determine whether, and the extent to which, it will send and
accept electronic records and electronic signatures . . . .”
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Yoshimura also states that the “underlying issue here, is
that there is very little guidance in the City Charter provision
on what is required for an impeachment petition.” For example,
he reads the Mansho order as permitting an impeachment petition
to be filed with a court, with that court further ordering the
petition to be submitted to the City Clerk for certification.
d. City’s brief of amicus curiae
Before this case was transferred from the ICA, the ICA
granted the City’s motion for leave to file a brief of amicus
curiae. The City’s amicus brief focuses solely on the issue of
whether the City Clerk can require handwritten signatures,
accompanied by residence addresses, on a petition for
impeachment under section 12-203 of the Revised Charter without
first promulgating a rule or other prior written policy. The
City argued that the UETA does not apply to Yoshimura’s
petition, because the City did not consent to be a party to this
electronic transaction, and HRS § 489E-5(b) (2008) states that
Hawaiʻi’s UETA “appl[ies] only to transactions between parties
each of which has agreed to conduct transactions by electronic
means.” The City points to the state legislative history and
the NCCUSL commentary to the model UETA for the proposition that
governmental agencies’ acceptance of electronic signatures is
“permissive and not obligatory.” For support, the City cites to
WCT&D, LLC v. City of Kansas City, 476 S.W.3d 336, 341 (Mo. App.
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2015) (holding that a neighbor’s email did not constitute a
signature that an applicant for a liquor license could use, and
the city had not consented to accept electronic communications
in any event; therefore, the UETA did not apply); and Ni, 196
Cal. App. 4th at 1653 (disallowing submission of thumb drive
with electronic signatures to put initiative on California
ballot). In any event, even if the UETA did apply to
Yoshimura’s petition, the City argued that HRS § 489E-18
provided it with discretion to accept electronic signatures, and
that the ICA has previously viewed that statutory language as
plain and unambiguous, citing Stone v. Administrative Director
of the Courts, CAAP-XX-XXXXXXX, 2019 WL 474116 (Haw. App. Sept.
27, 2019).
Because the UETA does not apply, the City argues it was
free to determine in this case that it would reject electronic
signatures and require residence addresses on impeachment
petitions under section 12-203 of the Revised Charter.
The City argues that the City Clerk performs voter
registration functions pursuant to section 3-301 of the Revised
Charter9 and HRS § 11-14.10 When an applicant registers to vote
9 Section 3-301 of the Revised Charter states, “The city clerk shall
. . . conduct all voter registration functions pursuant to this charter or
the laws of the state.”
10 HRS § 11-14 is titled “General county register; restrictions in use.”
It provides that the clerk of each county “shall register all voters in the
(continued . . .)
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using a paper application, under HRS § 11-15 (2008, Supp. 2012,
& Supp. 2016)11 and HAR § 3-172-20 (2010)12, the applicant must
provide a signature. An applicant registering to vote online
must have a valid government-issued identification card with the
applicant’s signature on it, pursuant to HRS § 11-15.3 (Supp.
2012).13 The City states that proof of signature allows the City
to protect its interest in detecting fraudulent or questionable
signatures, citing Peroutka v. Cronin, 117 Hawaiʻi 323, 179 P.3d
1050 (2008).
Similarly, the City states that a signatory’s residence
address is “the cornerstone of becoming a registered voter,” as
“[a] person’s residence dictates where the person can vote and
for what office,” citing Nader, 2008 WL 1932284, at *27-29. The
(continued . . . )
clerk’s county in the general county register,” which “shall contain the name
and address of each voter . . . .”
11 HRS § 11-15 is titled “Application to register” and requires a person
registering to vote to submit an affidavit attesting to that person’s name;
Hawaiʻi driver’s license number or Hawaiʻi state identification number, or, if
none, the last four digits of the person’s Social Security number, or, if
none, a unique number assigned to the applicant for voter registration
purposes; date of birth, residence, including mailing address, intent to make
Hawaiʻi the applicant’s legal residence, and citizenship.
12 HAR § 3-172-20 similarly requires a voter registration form to contain,
among other items, a residence address and a signature.
13 HRS § 11-15.3 is titled “Application to register electronically.” It
provides that a person seeking to register to vote electronically
“consent[s]” to having election officials confirm information, including the
applicant’s signature, “from government databases associated with government-
issued identification.” The statute goes on to state, “The applicant’s
signature obtained from the government database may be utilized by election
officials to validate and confirm a voter’s identity in any election-related
matter in which a signature is necessary.”
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Nader opinion went on to state, “The law is clear that providing
one’s residence is the linchpin of being properly registered,”
and that the Hawaiʻi State Office of Election’s “practice and
procedure of requiring residential addresses for confirmatory
purposes is also reasonable and nondiscriminatory.” Id.
e. Yoshimura’s response to the City’s amicus brief
The ICA permitted both Yoshimura and Kaneshiro to submit
responses to the City’s amicus brief, but only Yoshimura
responded. In his response, Yoshimura asserts that DocuSign
“uses a tamper proof audit trail to document each electronic
signature and its[] accompanying documents, and this audit trail
has been cited by courts to show reliability in tracking the
party that signed the document,” citing 10 Moonwalkers, Inc. v.
Banc of America Merchant Services, LLC, 814 S.E.2d 583 (N.C. Ct.
App. 2018), and In re Henrique, 559 B.R. 900 (Bankr. C.D. Cal.
2016). He also argues there is nothing in section 12-203 of the
Revised Charter calling for the use of full legible names,
handwritten signatures, and residence addresses of signatories.
As for the discretion of governmental agencies under HRS
§ 489E-18 to accept or not accept electronic signatures,
Yoshimura notes that certain governmental agencies of the City
and County of Honolulu, like the Honolulu Police Department, the
Division of Purchasing, and the Department of Planning and
Permitting, have written policies on when they will accept
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electronic records, referencing HRS chapter 489E. Thus, he
argues, the City “should not be allowed to selectively deny the
acceptance of electronic signatures for petitions while three
different City agencies accept electronic signatures.”
2. Analysis
a. The UETA does not apply in this case.
Although this appeal is framed in terms of reconciling HRS
§ 489E-7(d)’s general validation of electronic signatures and
HRS § 489E-18’s grant of discretion to governmental agencies to
reject electronic signatures, there is a preliminary question of
whether HRS chapter 489E applies at all. HRS § 489E-3 (2008),
titled “Scope,” states that Hawaiʻi’s UETA “shall apply to
electronic records and electronic signatures relating to a
transaction.” HRS § 489E-2 (2008) defines “[t]ransaction” as
“an action or set of actions occurring between two or more
persons relating to the conduct of business, commercial, or
governmental affairs.”
As the City points out, HRS § 489E-5(b) states, “This
chapter shall apply only to transactions between parties each of
which has agreed to conduct transactions by electronic means.
Whether the parties agree to conduct a transaction by electronic
means is determined from the context and surrounding
circumstances, including the parties’ conduct.” The legislative
history to the UETA also emphasizes parties’ consent. See Sen.
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Stand. Comm. Rep. No. 3265, 2000 Legislative Session (“The Act
. . . only applies when parties have agreed to an electronic
transaction.”). The NCCUSL commentary to the model UETA
explains, “[T]he paradigm for the [UETA] involves two willing
parties conducting a transaction electronically, mak[ing] it
necessary to expressly provide that some form of acquiescence or
intent on the part of a person to conduct transactions
electronically is necessary before the [UETA] can be invoked.”
NCCUSL Commentary at 2.
In this case, the “context and surrounding circumstances,
including the parties’ conduct” display that the City never
agreed to conduct the certification of an impeachment petition
through electronic means. As explained in the City’s amicus
brief, governmental agencies’ acceptance of electronic
signatures is “permissive and not obligatory.” As further
reflected in the City’s amicus brief as well as its April 23,
2019 letter, it is clear the City did not agree to the use of
electronic signatures as part of its process of certifying duly
registered voters on impeachment petitions under section 12-203
of the Revised Charter. The City is not one of “two willing
parties conducting a transaction electronically,” and there is
no express “acquiescence or intent on the part of [the City].”
Thus, the City Clerk’s review of Yoshimura’s electronic
petition(s) falls outside the scope of the UETA, and beyond the
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reach of HRS § 489E-18(a), the statute which Yoshimura argues
requires the City to “determine whether, and the extent to
which, it will send and accept electronic records and electronic
signatures” through rulemaking under HAPA or otherwise.
Although the UETA does not apply, we proceed to address the
remaining issues, also based on the public interest exception to
the mootness doctrine.
b. Even if the UETA did apply, the City was not
required to promulgate a rule or written policy,
under HAPA or otherwise, concerning when it would
accept or reject electronic signatures on
impeachment petitions under section 12-203 of the
Revised Charter
Even if Hawaiʻi’s UETA applied, the plain language and
legislative history of its statutory provisions, as well as the
NCCUSL’s commentary to the model UETA, support the circuit
court’s COL 9 that HRS § 489E-18’s discretionary provisions
“trump” HRS § 489E-7’s general validation of electronic
signatures. The UETA applies to electronic transactions in
business, commerce, and governmental affairs. HRS § 489E-2.
HRS § 489E-7 states generally that “[i]f a law requires a
signature, an electronic signature satisfies the law.” When it
comes to a specific subset of electronic transactions, however
-- those involving governmental agencies -- there exists
discretion to reject electronic signatures. See HRS
§ 489E-18(c) (“[T]his chapter does not require a governmental
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agency of this State to use or permit the use of electronic
records or electronic signatures.”). Under ordinary canons of
construction, a more specific statute controls over a more
general statute. See, e.g., Richardson v. City & County of
Honolulu, 76 Hawaiʻi 46, 54-55, 868 P.2d 1193, 1201-02 (1994)
(“[W]here there is a ‘plainly irreconcilable’ conflict between a
general and a specific statute concerning the same subject
matter, the specific will be favored.”).
The legislative history of Hawaiʻi’s UETA also reflects a
permissive, rather than mandatory, approach to the use of
electronic signatures. See Sen. Stand. Comm. Rep. No. 3265,
2000 Legislative Session (“The Act does not mandate the use of
electronic signatures or records, but establishes procedural
guidelines for their use . . . .”). The NCCUSL Commentary to
the model UETA is in accord. See Commentary at 52 (“Section 18
broadly authorizes state agencies to send and receive electronic
records and signatures in dealing with non-governmental persons.
Again, the provision is permissive and not obligatory . . . .”).
In this case, the City properly exercised its discretion
under HRS § 489E-18(c) to prohibit the use of electronic
signatures on impeachment petitions in response to Yoshimura’s
inquiry. Yoshimura argues that the City was required to have
already had a written policy in place or to have promulgated a
rule under HAPA setting forth when electronic signatures will
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not be accepted on impeachment petitions, pursuant to HRS
§ 489E-18(a), which states, in relevant part, “[E]ach
governmental agency of this State shall determine whether, and
the extent to which, it will send and accept electronic records
and electronic signatures to and from other persons . . . .”
Under the plain language of this statute, there is no
requirement that the City undergo rulemaking for section 12-203
of the Revised Charter or issue written policy statements in
anticipation of the advent of electronic impeachment petitions.
Therefore, the circuit court’s COL 11 was correct.
To support his view of HRS chapter 489E, Yoshimura relies
heavily on three out-of-state cases. The first is Anderson, 234
P.3d 1147, a Utah case. In that case, the issue was whether
electronic signatures counted towards a “signed” nomination
certificate for a candidate for office. 234 P.3d at 1148.
Anderson, a gubernatorial candidate not affiliated with any
political party, was tasked with collecting the signatures of
1000 registered voters in order to have his name placed on the
ballot. Id. He collected both handwritten signatures and
electronic signatures through a computer website. Id. Seven
county clerks certified that the signatures he collected were
valid. Id. The signatures were then submitted to the Utah
Lieutenant Governor, who excised the electronic signatures as
not constituting “signatures” under the Utah Election Code. Id.46
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Without the electronic signatures, Anderson did not have enough
signatures to be placed on the gubernatorial ballot. Id.Anderson filed an extraordinary writ with the Utah Supreme
Court challenging the Lieutenant Governor’s action. Id. The
Utah Supreme Court first noted that the Utah Election Code was
to be liberally construed to give unaffiliated candidates every
reasonable opportunity to have access to the ballot. 234 P.3d
at 1150-51. The court then noted its statutory rules of
construction, as well as the UETA, defined signature to include
an electronic signature. 234 P.3d at 1152. The Utah Supreme
Court sided with Anderson, who pointed to the Utah UETA
provision stating, “If a law requires a signature, an electronic
signature satisfies the law.” 234 P.3d at 1153. In so doing,
it rejected the Utah Lieutenant Governor’s arguments that he did
not consent to the electronic transaction, and that other
provisions of the Utah UETA gave him the discretion to reject
electronic signatures. Id. The Utah Supreme Court concluded
that the electronic transaction was not between Anderson and the
Lieutenant Governor, but between Anderson and his supporters.
234 P.3d at 1155.
Turning to the Utah UETA, the court noted that one of its
provisions allowed government agencies the discretion to decide
when they will accept or reject electronic signatures, but only
after following Utah’s rulemaking procedures. 234 P.3d at 1154.
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The court concluded the Lieutenant Governor could not “make
informal decisions on what type of transactions cannot be
supported by electronic signatures outside of the rulemaking
process . . . .” Id. The Utah Supreme Court also rejected the
Lieutenant Governor’s argument that he did not have to accept
electronic signatures under another provision of Utah’s UETA
that states, “[N]othing in this chapter requires any state
governmental agency to: (a) conduct transactions by electronic
means; or (b) use or permit the use of electronic records or
electronic signatures.” Id. The court’s reasoning was that the
provision “loses its persuasive effect” when harmonized with the
rest of Utah’s UETA provisions and the Utah Election Code. Id.The Utah Supreme Court thus granted Anderson extraordinary
relief and ordered the Lieutenant Governor to recount the
signatures submitted. 234 P.3d at 1156. The following year,
the Utah state legislature overrode the Anderson case by
amending the Utah Election Code to prohibit electronic
signatures on petitions from unaffiliated candidates. Benjamin,
786 S.E.2d at 211. The Anderson case is distinguishable from
the instant case in one key respect, and that is the Utah UETA
required governmental agencies to promulgate rules before
exercising discretion to accept or not accept electronic
signatures. No such requirement exists in HRS § 489E-18, which
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grants governmental agencies the discretion to accept or not
accept electronic signatures.
Another UETA case Yoshimura relies on is Benjamin, 786
S.E.2d at 212, in which the West Virginia Supreme Court held
that the electronic monetary contribution receipts submitted by
a candidate for judicial office contained unique transaction
codes that allowed individual contributors to be identified;
thus, these receipts constituted electronic signatures under
West Virginia’s UETA and Public Campaign Finance Program. The
Benjamin case is factually very different from Yoshimura’s case
and therefore not instructive. In this case, without residence
addresses, individual signatories to Yoshimura’s petition(s)
could not be identified and verified as duly registered voters
by the City Clerk.
The last electronic signature case Yoshimura cites is Ni,
196 Cal. App. 4th 1636, in which proponents seeking to place an
initiative on the ballot submitted a thumb drive containing an
electronic image of an individual’s signature. 196 Cal. App.
4th at 1641. The County rejected the electronic signature as
not having been “personally affixed,” which the California
Elections Code required, along with “personally affixing” a
printed name and address. Id. The California Court of Appeal
agreed, applying the California Elections Code, and not the
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UETA. 196 Cal. App. 4th at 1647. Ni is, therefore,
distinguishable.
None of the cases Yoshimura cites (Anderson, Benjamin, Ni)
are persuasive on the issue of whether the City Clerk must
accept electronic signatures, or, if the City Clerk chooses to
reject electronic signatures, whether such a determination must
first be promulgated via written policy or rule. Therefore, the
City was free to determine, in this case, that it would require
full legible names, handwritten signatures, and residence
addresses in order to certify the signatories as duly registered
voters of the City and County of Honolulu. Thus, the circuit
court’s COL 10 was correct.
To the extent the City’s letter decision to reject
electronic signatures itself constituted a rule that should have
gone through HAPA’s rulemaking procedure, our recent case, Green
Party v. Nago, speaks directly to that issue. 138 Hawaiʻi 228,
378 P.3d 944 (2016). That case concerned irregularities that
occurred during the 2012 election (i.e., the methodology by
which the number of ballots ordered was calculated and the
procedure by which votes cast on improper ballots would be
counted). Id. This court held that the methodology and
procedure in place to respond to those irregularities were rules
that should have been promulgated by rulemaking under HAPA. 138
Hawaiʻi at 230-31, 378 P.3d at 946-47.
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In that case, during the 2012 General Election, a number of
irregularities occurred. First, insufficient ballots were
ordered for various polling places. 138 Hawaiʻi at 231, 378 P.3d
at 947. This happened because the Office of Elections had
departed from its prior practice of ordering General Election
ballots equal to 85% of the total number of registered voters.
138 Hawaiʻi at 233, 378 P.3d at 949. Instead, in 2012, it
decided to order General Election ballots equal to 125% of the
actual number of votes cast in that year’s Primary Election.
Id. The Office of Elections did not adopt its new methodology
as an administrative rule. Id.
Next, on election day itself, poll workers delivered the
wrong reserve ballots to two polling places that had run out of
ballots; each polling place received the other’s reserved
ballots. 138 Hawaiʻi at 231, 378 P.3d at 947. Voters at each
location had the others’ ballots for voting on state house of
representatives, state senate, and city council races. Id. The
Office of Elections had not adopted an administrative rule
setting forth the procedure that would apply when votes are cast
on ballots for an incorrect precinct, but the practice in place
was to not count the votes cast in races for which the voter was
not eligible to vote. 138 Hawaiʻi at 234, 378 P.3d at 950.
After the election, the Green Party filed a complaint
asserting that the Office of Elections had violated HAPA by,
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inter alia, failing to adopt administrative rules concerning (1)
the methodology used to determine the number of ballots ordered
and (2) the procedure used to count votes cast on wrong
ballots.14 Id. The circuit court granted the Office of
Elections’ motion for summary judgment and held that the
challenged methodology and procedure concerned only the internal
management of the agency and were thus not subject to HAPA’s
rulemaking requirement. 138 Hawaiʻi at 235, 378 P.3d at 951.
The ICA affirmed the circuit court’s judgment, holding that the
methodology for determining the number of ballots to order in
2012 was a “one-time calculation/miscalculation” not subject to
HAPA’s rulemaking requirement. Id. It also held that the
situation in which votes were cast on the wrong ballots was not
foreseeable, and any procedure addressing that situation would
be a matter of internal management; therefore, the procedure was
not subject to HAPA’s rulemaking requirement. 138 Hawaiʻi at
236, 378 P.3d at 952. We vacated the ICA’s judgment to the
extent that it affirmed the circuit court’s judgment on the
basis that HAPA’s rulemaking requirement did not apply to the
methodology for ordering ballots and the procedure for counting
14
The Green Party also alleged that the Office of Elections was required
to adopt a rule regarding the procedures by which a precinct requests
additional paper ballots. 138 Hawaiʻi at 234, 378 P.3d at 950. We concluded,
however, that there was no evidence of any established procedure addressing
this situation; therefore, there was no “rule” in place subject to HAPA’s
rulemaking requirement in this instance. 138 Hawaiʻi at 242, 378 P.3d at 958.
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votes cast on the wrong ballots. 138 Hawaiʻi at 243, 378 P.3d at
959. We remanded the case to the circuit court for it to order
that the methodology and procedure challenged by the Green Party
were indeed invalid. 138 Hawaiʻi at 235, 378 P.3d at 951.
In so doing, we first noted that the relevant question was
whether the Office of Elections’ (1) methodology for ordering
ballots and (2) procedure for counting votes on the wrong
ballots amounted to the “adopt[ion of] rule[s], and if so, . . .
whether the rule[s were] valid.” 138 Hawaiʻi at 237, 378 P.3d at
954. We first noted the distinction between an agency statement
that is “legislative,” and thus requires rulemaking, and an
agency statement that is “adjudicatory,” which does not. 138
Hawaiʻi at 238, 378 P.3d at 954. A “legislative” agency
statement “operates in the future” and has a “general effect,”
while an “adjudicative” agency statement is “backward looking”
and “concerned with the determination of past and present rights
and liabilities of individuals where ‘issues of fact often are
sharply controverted.’” 138 Hawaiʻi at 238, 240, 378 P.3d at
954, 956. (citations omitted).
In Green Party, we noted that, if the Office of Elections’
(1) methodology for ordering ballots or (2) procedure for
counting votes on the wrong ballots “qualif[ied] as ‘rules’ as
defined in HAPA, then they [were] invalid for not complying with
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HAPA’s statutory rulemaking requirements.” 138 Hawaiʻi at 238,
378 P.3d at 954. As to the Office of Elections’ 2012
methodology for ordering ballots, we held it was a rule because
it was of “general applicability and . . . future effect.” 138
Hawaiʻi at 240, 378 P.3d at 956. We noted the ballot order
determination was not a “backward-looking” “one-time
calculation/miscalculation,” as it was intended to have a future
effect upon the ballots ordered for the upcoming election. Id.
We concluded that the Office of Elections was required to have
adopted the methodology pursuant to the rulemaking requirement
under HAPA. 138 Hawaiʻi at 242, 378 P.3d at 958.
As to the procedure for votes cast on the wrong ballots, we
held that the Office of Elections appeared to have a procedure
in place for counting votes on the wrong ballot: votes were
counted for only those races for which the voter was eligible to
vote and not counted for those races for which the voter was
ineligible to vote. Id. Such a procedure thus demonstrated the
“general applicability and future effect” characteristics of a
rule and should have been promulgated as a rule pursuant to
HAPA. 138 Hawaiʻi at 242-43, 378 P.3d at 958-59.
In the instant case, the City’s determination to reject
electronic signatures resembles neither the Office of Elections’
(1) methodology for ordering ballots for an upcoming election,
nor (2) its procedure for counting votes cast on the wrong
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ballots. First, unlike the Office of Elections’ methodology for
ordering ballots for an upcoming election, which was of general
applicability and future effect, the City’s determination to
reject electronic signatures was an ad hoc, backward-looking
decision made in the specific context of Yoshimura’s inquiries
with regard to these impeachment petitions. Second, unlike the
Office of Elections’ pre-existing procedure for counting votes
cast on the wrong ballots, the City had no pre-existing policy
for accepting or rejecting electronic signatures on an
impeachment petition under section 12-203 of the Revised
Charter. In fact, the City had deferred to the circuit court
for months to adjudicate whether electronic signatures should be
accepted before ultimately deciding to reject them. Thus, the
City’s determination to reject electronic signatures was not a
“rule” subject to HAPA’s rulemaking requirements. The circuit
court’s COL 11 was therefore correct.
c. Requiring handwritten signatures and residence
addresses is rationally related to preventing
fraud in impeachment petitions under section
12-203 of the Revised Charter
Hawaiʻi courts have already weighed in on the propriety of
requiring handwritten signatures and residence addresses to
verify signatories to a petition. In Nader, 2008 WL 1932284,
the United States District Court for the District of Hawaiʻi
addressed the requirements for placing two presidential
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candidates on the Hawaiʻi ballot. In that case, two presidential
candidates (Michael A. Peroutka and Ralph Nader) were required
to collect the number of signatures equal to 1% of the votes
cast in the last presidential election in order to be placed on
the ballot, pursuant to HRS § 11-113. 2008 WL 1932284, at *4.
A form petition for that purpose required, among other things, a
signature and residence address. Id. Both candidates fell
short of the number of signatories necessary, and each brought
suit in federal court challenging the information necessary to
confirm signatories. Id. The federal court stated the
following:
18. [A] residence address is required in order to
determine if a signatory is in fact who he or she claims to
be and in ascertaining whether the individual is a
“currently registered voter” in terms of being qualified to
sign the petition.
19. The residence address is the cornerstone of becoming a
registered voter. A person’s residence dictates where the
person can vote and for what office. . . .
20. . . . The law is clear that providing one’s residence
is the linchpin of being properly registered. Therefore,
the Court finds that the Office of Elections’ practice and
procedure of requiring residential addresses for
confirmatory purposes is also reasonable and non-
discriminatory.
2008 WL 1932284, at *10.
Addressing the same challengers (Peroutka and Nader) in a
related proceeding, this court held, with respect to the Office
of Elections’ procedures for verifying handwritten signatures,
“In light of the state’s interest in detecting fraudulent or
questionable signatures, we cannot say that it was clearly
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erroneous for the Chief Elections Officer to reject a signature
because the signatory provided a different address on the
petition form than was provided in the SVRS.” Peroutka, 117
Hawaiʻi at 330. Thus, both cases support the circuit court’s
COLS 8 and 10 that the City could require full legible names,
handwritten signatures, and residence addresses in order to
certify Yoshimura’s petition(s) and in order to prevent fraud.
C. The circuit court did not abuse its discretion in denying
Yoshimura’s motion for leave to amend his petition
Yoshimura also argues the circuit court should have granted
him leave to amend his petition, because amendment was not
futile. Again, he cited Keawe, 65 Haw. 232, 649 P.2d 1149, for
the proposition that leave to amend a complaint should be freely
given, absent any apparent or declared reason, such as undue
delay, bad faith, or dilatory motive on the part of the movant,
or a repeated failure to cure deficiencies in the complaint. To
support his position, he argues that the circuit court erred in
concluding that the City had the discretion to reject electronic
signatures.
In his answering brief, Kaneshiro counter-argues that
Yoshimura’s second amended petition was futile; therefore, the
circuit court did not abuse its discretion in denying
Yoshimura’s leave to amend. Specifically, Kaneshiro states that
the proposed second amended petition did not attach a new or
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separate petition; instead, it relied on the same DocuSign
petition that did not meet the filing requirements of section
12-203 of the Revised Charter (500 handwritten signatures of
duly registered Honolulu voters).
In this case, amendment was futile. Yoshimura made it
clear in his proposed second amended petition that he would not
support his impeachment petition with handwritten signatures or
residence addresses, despite the City’s position on the
information it would need to certify his petition. Thus, the
second amended petition would have been dismissed, for the same
reasons the first amended petition was dismissed. Therefore,
the proposed second amended petition was futile. See Adams v.
Dole Food Co., 132 Hawaiʻi 478, 488, 323 P.3d 122, 132 (App.
2014) (citing Office of Hawaiian Affairs v. State, 110 Hawaiʻi
338, 365, 133 P.3d 767, 794 (2006) (“Where proposed amendments
to a complaint would not survive a motion to dismiss, this court
should affirm the denial of leave to amend on futility
grounds.”). The circuit court did not abuse its discretion in
denying Yoshimura’s motion for leave to amend.
D. The circuit court did not abuse its discretion in denying
Yoshimura’s motion for reconsideration.
Lastly, Yoshimura argues that the circuit court erred in
denying his motion for reconsideration, because he provided
legal authority the circuit court overlooked in concluding HRS
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§ 489E-18 did not require it to have a pre-existing written
policy or rule concerning whether it would accept electronic
signatures on impeachment petitions.
In his answering brief, Kaneshiro counter-argues that
Yoshimura could have brought his arguments previously in
opposition to his motion to dismiss; therefore, the circuit
court did not abuse its discretion in denying Yoshimura’s motion
for reconsideration.
In this case, the circuit court did not abuse its
discretion in denying Yoshimura’s motion for reconsideration,
because all of the legal authority Yoshimura marshaled to
support his motion for reconsideration (the federal ESIGN Act,
HAPA, and the Anderson case) could have been raised earlier in
the litigation, in opposition to Kaneshiro’s motion to dismiss
or cross-motion to strike. Yoshimura’s motion for
reconsideration merely sought to relitigate old matters.
Consequently, the circuit court did not abuse its discretion in
denying his motion for reconsideration. See, e.g., Chen v. Mah,
146 Hawaiʻi 157, 172, 457 P.3d 796, 811 (2020) (“‘[T]he purpose
of a motion for reconsideration is to allow the parties to
present new evidence and/or arguments that could not have been
presented during the earlier adjudicated motion.’
Reconsideration is not a device to relitigate old matters or to
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raise arguments or evidence that could and should have been
brought during the earlier proceeding.”) (citation omitted).
E. The circuit court properly dismissed the case for lack of
jurisdiction
Yoshimura asserts “there is very little guidance in the
City Charter provision on what is required for an impeachment
petition.” The Mansho order, No. 24858, interpreted Section
12-202 of the Revised Charter, which governs impeachment of a
City Councilmember. When that order was issued, Section 12-202
designated this court to serve as “a board of impeachment in any
proceeding for the removal of a councilmember,” upon
presentation of a “charge . . . set forth in writing in a
petition for impeachment signed by not less than one thousand
duly registered voters of the council district for the removal
of a council member, and said signatures shall be necessary only
for the purpose of filing the petition.” In Mansho, upon
receipt of the petition, this court filed an order stating that
one “preliminary issue” was “whether the signatures in support
of the petition [we]re the signatures of registered voters in
the Council District 1 of the City and County of Honolulu.”
Mansho, No. 24858. This court ordered the petitioners to submit
a copy of the petition with its signature pages to the Clerk of
the City and County of Honolulu, who would then review the
signatures and submit a declaration as to whether the petition
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was signed by at least one thousand duly registered voters from
the councilmember’s district. Mansho, No. 24858. The
councilmember who was the subject of that impeachment petition
resigned before further proceedings could be had in this court.
As indicated by the Mansho order, the requisite number of
signatures are necessary for the purpose of filing an
impeachment petition. In this case, there was no showing of the
signatures necessary to support Yoshimura’s impeachment
petition(s). Therefore, the circuit court properly dismissed
the case for lack of jurisdiction.
V. Conclusion
For the foregoing reasons, we affirm the circuit court’s
(A) November 15, 2019 Final Judgment; (B) Findings of Fact,
Conclusions of Law, and Order: (1) Denying Petitioner’s Motion
for Leave to Amend Petition and to Name City Clerk as a
Respondent in a Declaratory Judgment Complaint, (2) Denying
Respondent Keith M. Kaneshiro’s Cross-Motion to Strike
Petitioner’s Motion for Leave to Amend Petition and to Name City
Clerk as a Respondent in a Declaratory Judgment Complaint, and
(3) Dismissing Case for Lack of Jurisdiction Filed on August 19,
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2019; and (C) Order Denying Petitioner’s Motion for
Reconsideration Filed on October 2, 2019.
Keith M. Kiuchi /s/ Mark E. Recktenwald
for plaintiff-appellant
/s/ Sabrina S. McKenna
William C. McCorriston
(David J. Minkin, /s/ Michael D. Wilson
Nadine Y. Ando,
and Jordan K. Inafuku /s/ Todd W. Eddins
with him on the briefs)
for defendant-appellee /s/ James H. Ashford
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