Green Party of Hawaii v. Nago.

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Electronically Filed
Supreme Court
SCWC-14-0001313
19-JUL-2016
08:46 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

GREEN PARTY OF HAWAII, KAREN M. HOLT, ELIZABETH M. RUZE,
MICHAEL KRATZKE, MOANI KEALA AKAKA, KIM DUFFETT,
MARY JO DENNISON and MAKAʻALA KAʻAUMOANA,
Petitioners/Plaintiffs-Appellants,

vs.

SCOTT NAGO, Chief Elections Office, State of Hawaiʻi,
and STATE OF HAWAIʻI,
Respondents/Defendants-Appellees.

SCWC-14-0001313

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0001313; CIVIL NO. 12-1-0956(2))

JULY 19, 2016

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

This case involves an action by the Green Party of

Hawaii and seven registered voters who voted in the 2012 General

Elections (Green Party) seeking a declaratory judgment pursuant

to Hawaiʻi Revised Statutes (HRS) § 91-7 (2012) that certain
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methodologies and procedures used by the Office of Elections in

the 2012 election are invalid under the Hawaiʻi Administrative

Procedure Act (HAPA).

Specifically, Green Party contends that the Office of

Elections violated rulemaking requirements because of its

failure to adopt administrative rules pursuant to HAPA regarding

the methodology and procedures used to (1) determine the number

of election ballots to be delivered to the precincts, (2)

request additional ballots when a precinct runs out of paper

ballots, and (3) count the votes cast on a ballot for a precinct

in which the voter is not entitled to vote. We conclude that

the procedures used to determine that there will be a sufficient

number of ballots ordered for each precinct for a primary or

general election and the policy for counting votes cast on

ballots for the incorrect precinct are “rules” under HAPA and

thus subject to the rulemaking requirements of HAPA.

I. BACKGROUND

A. The 2012 Election

Chief Election Officer Scott T. Nago reported on the

election-day issues that arose during the 2012 General Election

in memoranda to the Elections Commission dated November 9, 2012,

and November 20, 2012:

On the day of the General Election, it was discovered
that there was a deficiency in the amount of the ballots
that had been ordered for the election.

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The initial lack of a sufficient inventory of ballots
at various polling places across the state was the result
of a deficient model used for ordering ballots, a failure
to follow the safeguards that exist to modify the order or
to reallocate existing ballots prior to election day, and a
failure to deploy additional ballots in a timely manner on
election day.[1]

. . . .

The Office of Elections proceeded to deliver reserve
ballots to a number of polling places before they ran out.
However, as the day went on, the amount of polling places
experiencing this problem outstripped the Office of
Elections’ ability to deliver ballots in a timely manner
before various polling places ran out of paper ballots and
were forced to direct voters to use the traditionally less
utilized direct recording electronic voting machines, while
they waited for the reserve ballots to be delivered.

In the end, we received approximately 70 calls from
51 polling places about their ballot inventory, and 24 of
them actually ran out [of] paper ballots before our
delivery of ballots to them. Significant delays were
experienced at various polling places given that the direct
recording electronic voting machine could be used by only
one voter at a time, compared to paper ballots which can be
quickly issued to voters, who can then go to separate
voting booths to fill them out, and then quickly have them
read by the standard precinct counter for paper ballots.

Nago then addressed several notable incidents

resulting from the insufficient ballot inventory at the polling

places:

As part of the urgency of getting the ballots out to the
polling places, the ballots for two polling places were
accidentally delivered to the wrong polling places towards the
end of the day. Specifically, Hokulani Elementary School

1
The primary explanation given by Nago as to the reason for
the “deficient model” is that the 2012 General Election was the first
General Election following the 2011 reapportionment and redistricting
of the precincts. Consequently, as explained by Nago,
precinct/district boundaries changed, which resulted in an inability to
make a direct comparison between elections for a specific precinct
other than the 2012 Primary Election. Nago explained, “The inability
to make a direct comparison between comparable elections should have
resulted in the consideration of an even higher safeguard percentage
than 125% of Primary Election voter turnout that was used.”

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(District Precinct 20-04) and Waialae Elementary School (District
Precinct 19-03) received each other’s reserve ballots.

The precinct counters are programmed to only read ballots
of the specific ballot type associated with that precinct. As
such, the precinct counters rejected the ballots and would not
read them. In situations where the precinct counter will not
read a ballot, the voter is able to have it deposited in the
emergency ballot bin, where it will be scanned at a later time.
This is what occurred at Hokulani Elementary School and Waialae
Elementary School for those voters provided the incorrect ballot
at the end of the day. These ballots were eventually counted at
the State Capitol. However, only the contests that the voters
were eligible to vote on were counted. Specifically, the voters
at Hokulani Elementary School (District Precinct 20-04) were not
eligible to vote on the State Representative, 19th District, State
Senate 9th District, and Council District IV contests on the
Waialae Elementary School ballots (District Precinct 19-03).
Similarly the voters at Waialae Elementary School (District
Precinct 19-03) were not eligible to vote on the State
Representative, 20th District, State Senate, District 10 and
Council District V contests on the Hokulani elementary School
ballots (District Precinct 20-04). A total of 46 ballots at
Hokulani Elementary School and 11 at Waialae Elementary School
had to be treated in this manner.

Nago concluded that the irregularities that had

occurred did not appear to be legally sufficient to change the

election results:

In reviewing the impacted contests of State
Representative, 19th and 20th Districts, State Senate 9th and
10th Districts, and Council Districts IV and V, the margins
of victory were significant and would not have been
impacted by these ballots. In the present case, these
irregularities do not appear to be legally sufficient to
change the election results.

Nago also explained that the voting delays did not

affect voters in line at the close of polls as they were

permitted to vote:

By state law, all voters in line at the close of
polls are able to vote. As such, in talking to the media,
we encouraged all impacted voters to remain in line as they
would be permitted to vote and that they should utilize the

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electronic voting machines. In the end, all voters in line
at the close of polls were permitted to vote. However, as
previously noted, there were significant delays.[2]

Elizabeth M. Ruze, a plaintiff in this case, submitted

a sworn declaration that recounted her voting experience:

3. I went to Hokulani Elementary on November 6,
2012 to vote in the general election near the end of the
day.

4. I was given a paper ballot by the poll workers.
I voted the ballot including some races that I did not know
were in my district. I then gave the ballot to the poll
worker.

5. The poll workers told me that there was
something wrong with the machine so they were putting
ballots under the automatic feeder into the ballot slot.

6. It was then discovered that these ballots were
for the wrong district and we were told we could vote on a
minority language ballot or use the electronic voting
machines. We all assumed that these additional ballots
were good because we saw them arrive and the poll worker
said, “Good. We’ve got ballots.”

7. I first looked at the minority language ballot
to see if I could vote one but I couldn’t figure out the
ballot “referendum” type questions so I ended up voting on
the electronic voting machine.

8. When I was finished voting on the electronic
voting machine, I asked a poll worker about the disposition
of my original ballot because I was worried about voting
twice. He told me “don’t worry about the first time you
voted.”

9. Many people were getting off work to vote and
were irritated when they had to stand in long lines after
the wrong ballots were discovered. Some voted on minority
language ballots but a number left because they said they
couldn’t wait any longer.

2
The audit logs of eleven polling places indicate breaks in voting
of less than fifteen minutes. At fifteen polling places, logs reflect that
the polling places ran out of ballots between 4:15 p.m. and 5:46 p.m. Of
these, five polling places ran out before 5:00 p.m. and the rest after 5:00
p.m. The delay before voting resumed at these polling places ranged from a
low of thirty-two minutes to approximately three hours.

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10. I was never told by the elections office what
happened to my first ballot.

Nago concluded his November 9, 2012 letter to the

Elections Commission with the following: “What has happened is

clearly unacceptable. Having been entrusted with the integrity

of our elections, our voters deserved better. We will be taking

steps to ensure that this never happens again.”

B. Determination of the Number of Ballots to Order

The Chief Election Officer is required to deliver a

sufficient number of ballots to each of the precincts before the

polls open on election day. The ballot order methodology used

to calculate the number of ballots printed for the primary and

general elections in 2010 is reflected in an undated document

entitled Ballot Order. The 2010 ballot order methodology

appears to be substantively similar to the prior version, Ballot

Order 2002.

Prior to the 2012 General Election, the model for

ordering polling place ballots involved calculating 85% of the

amount of registered voters in the precinct. Voter turnout in

comparable elections could be used as a basis to increase or

decrease the ballot order as necessary. The number of absentee

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mail ballots, absentee walk ballots,3 and reserve ballots4

ordered was based on a percentage of the number of the polling

place ballots. The absentee mail ballots ordered were generally

equal to 35% of the polling place ballots; absentee walk ballots

ordered were equal to 20% of the polling place ballots; and

reserve ballots were equal to 6% of the polling place ballot

order.

Historically and in 2012, the ballot order calculation

was supplemented by a review of the number of absentee ballots

cast prior to the opening of the polls. An unusually low

absentee mail or absentee walk turnout would act as a warning

sign that there were a higher number of remaining voters

eligible to vote at the polling places, resulting in the need to

deploy reserve ballots prior to the opening of the polls. If

there were concerns regarding whether the number of reserve

ballots was sufficient, then unissued absentee ballots could be

3
Absentee walk ballots are ballots cast by voters who vote prior
to election day at a polling place outside of their precinct set up for early
voting.
4
According to Nago, “[r]eserve ballots are a common practice to
address the possibility of loss, destruction or the exhaustion of ballots at
a polling place.” The circuit court found that reserve ballots are ballots
specific to each precinct that can be delivered to polling places and used if
a polling place runs out of the regular ballots. It is noted that Nago
indicated that “due to the distances involved in the County of Hawaii, the
reserve ballots were deployed at the same time as the regular precinct
ballots.”

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used, and the vendor could also print additional ballots on

election day.

Polling place voter turnout ranged from 22.6% to 40.6%

of registered voters in the years 2008 through 2010, depending

on the year and whether it was a primary election, general

election, presidential election, or gubernatorial election.

Thus, ordering eighty-five polling place ballots for every one

hundred registered voters resulted in essentially twice as many

ballots ordered as polling place voters.

For the 2012 General Election, the former Office of

Elections’ Ballot Operations Section Head determined the formula

used to calculate the number of ballots printed in the primary

and general elections. The ballot order formula was modified

based on the actual voter turnout for the 2012 Primary Election

instead of the number of registered voters. To determine the

number of voters expected to vote in the 2012 General Election,

the voter turnout for the 2012 Primary Election was multiplied

by 125%. Thus, instead of using the number of registered voters

as a base and multiplying it by a percentage of around 80%, the

2012 General Election ballot order method used the voter turnout

for the 2012 Primary Election and multiplied it by 125%. The

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number of reserve, absentee mail, and absentee walk ballots to

order was then calculated.5

As stated, the 2012 ballot order for the 2012 General

Election was based on the actual voter turnout for the 2012

Primary Election. Because the voter turnout for the 2012

Primary Election was low, multiplying it by 125% resulted in an

order of polling place ballots for the 2012 General Election

that was less than the order for the 2012 Primary Election.

The methodology used by the Office of Elections for

determining the number of ballots to order was not adopted as an

administrative rule.

C. Delivery of Reserve Ballots

Reserve ballots are ballots that can be delivered to

polling places if a polling place runs out of regular precinct

ballots or there is a loss or destruction of ballots. Reserve

ballots are ordered at the same time as other types of ballots.

The vendor delays printing reserve ballots to allow the Office

of Elections further time to adjust the quantity of reserve

ballots to be printed.

On election day, precinct workers monitor the supply

of paper ballots at the polling places, and when it appears that

5
The Office of Elections disclosed that it is “unaware of any
specific document involved in the determination process of the ballot
ordering process for the 2012 primary and general elections.”

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the supply of ballots is running low, a precinct worker calls

the counting center at the State Capitol and asks that reserve

ballots for the precinct be delivered. Additionally, if there

are concerns regarding whether the number of reserve ballots is

sufficient, then unissued absentee ballots can be used, and the

vendor can also print additional ballots on election day.

The Office of Elections has not adopted an

administrative rule that sets out the procedure to be used by

precinct workers for requesting reserve ballots on election day.

D. Counting Votes Cast on Ballots for the Incorrect Precinct

The vote counting equipment at each of the polling

places is electronically programmed to read only the paper

ballots associated with that precinct. Thus, the precinct

counters will reject paper ballots that do not correspond to

that precinct. In accordance with established procedures, the

rejected ballots in the 2012 General Election were deposited in

the emergency ballot bin to be counted at a later time. These

ballots were eventually counted at the State Capitol. In

counting the votes cast on ballots for the incorrect precinct,

all of the votes cast in races for which the voter is entitled

to vote are counted, and all of the votes cast in races in which

the voter is not entitled to vote are not counted.

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The Office of Elections has not adopted an

administrative rule that sets out the procedure that applies

when votes are cast on ballots for the incorrect precinct.

E. Procedural Background

Green Party filed a complaint in the Circuit Court of

the Second Circuit (circuit court) asserting three violations of

HAPA by the Office of Elections. Green Party argued that the

Office of Elections was required to adopt the following through

HAPA’s rulemaking procedures: a rule regarding the methodology

used to determine the number of ballots ordered; rules regarding

the procedures by which a precinct requests additional paper

ballots; and rules regarding the procedure used to count the

votes cast on a ballot for a precinct in which the voter is not

entitled to vote.6

The Office of Elections and Green Party filed counter

motions for summary judgment. Green Party requested that the

6
In count four of its complaint, Green Party also sought
injunctive relief restraining the State and Chief Elections Officer from
acting pursuant to rules that were not properly adopted pursuant to HAPA.
The circuit court denied Green Party’s request for injunctive relief,
concluding that Green Party had not prevailed on the merits and had not
established any evidence of irreparable injury favoring the issuance of an
injunction. In its Opening Brief to the Intermediate Court of Appeals (ICA),
Green Party did not challenge the circuit court’s denial of injunctive
relief, although Green Party requested in the conclusion of its Opening Brief
that the ICA consider whether injunctive relief would be appropriate. The
ICA did not address Green Party’s request for an injunction in its opinion
nor was it raised in the application for writ of certiorari to this court.
Although we note that Green Party is not precluded from seeking injunctive
relief at the circuit court, we do not consider the issue.

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court grant a declaratory judgment and order injunctive relief.

Green Party argued that it was entitled to judgment as a matter

of law on the basis that there were no genuine issues of

material fact. Green Party contended that the methodology for

determining the number of ballots to be printed and the

procedure of requesting additional ballots were, in effect,

administrative rules under HRS § 91-1(4). Conversely, the

Office of Elections’ motion for summary judgment argued that the

State was entitled to judgment as a matter of law based on the

following arguments: Green Party failed to state a claim for

relief; the methodology for determining the number of ballots to

be printed and procedure for requesting additional ballots were

aspects of organization and administration, not administrative

rules; administrative rules are not needed or required under HRS

§ 11-12; and Green Party is not entitled to a declaratory

judgment because it failed to meet the requirements for a

permanent injunction.

Following a hearing on the motions for summary

judgment, the circuit court denied Green Party’s motion for

summary judgment and granted the Office of Elections’ motion for

summary judgment.7 First, the court held that Green Party set

7
The Honorable Peter T. Cahill presided.

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forth a claim upon which relief may be granted.8 Second, the

court held that the challenged methodologies and procedures were

regulations concerning only the internal management of the

agency, specifically finding that the challenged methodologies

and procedures were excluded from the definition of a rule

because they were solely aimed at instructing the Office of

Elections, not the public at large. Third, the court held that

Green Party had not been denied due process. Lastly, the court

held that Green Party failed to show that the challenged

procedures and methodologies affected the private right to vote.

The circuit court also denied Green Party’s request for

injunctive relief. The court held that Green Party had not

prevailed on the merits of its claims or established any

evidence of irreparable injury favoring the issuance of an

injunction. On October 24, 2014, the court entered final

judgment.9

8
The circuit court found that Green Party’s decision to pursue an
alternative method of relief, instead of submitting a petition to the Chief
Election Officer asking for rulemaking, pursuant to HAR § 3-171-2, did not
constitute a failure to state a claim.
9
In its findings of facts, the court specifically found that as a
result of reapportionment and redistricting, “there was no prior General
Election to use as a starting point in calculating the number of ballots
needed in each of the post-reapportionment and redistricting precincts.”
Thus, the court found that the Office of Elections “modified the ballot order
calculation” by utilizing the 2012 Primary Election voter turnout as a base,
multiplied by 125%. The court granted the Office of Elections’ motion for
summary judgment on the basis that the challenged methodologies and
procedures pertained to the internal management of an agency and did not
affect the private rights of and procedures available to the public in any

(continued. . .)

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Green Party appealed the circuit court’s final

judgment to the Intermediate Court of Appeals (ICA) maintaining

that the challenged procedures were subject to HAPA rulemaking

requirements. The Office of Elections contended that the

challenged procedures regarding ordering ballots and monitoring

the levels of ballots were matters of internal management that

only indirectly affected the private rights of, or procedures

available to, the public. Additionally, the Office of Elections

asserted that its procedure for counting votes cast on a ballot

for a precinct in which the voter was not entitled to vote was a

matter of internal management and that the private rights of or

procedures available to the public were protected by existing

statutes and rules.

In a published opinion, the ICA affirmed the circuit

court’s judgment. Green Party of Haw. v. Nago, 137 Hawaiʻi 58,

71, 365 P.3d 987, 1000 (App. 2015), cert. granted, No. SCWC-14-

0001313 (Haw. Mar. 10, 2016). In analyzing whether the 2012

ballot order method was a rule, the ICA concluded that the 2012

ballot order method clearly “implements Hawaiʻi election law, in

(. . .continued)

way, including the right to vote. The court additionally held that Green
Party had not prevailed on the merits of its claim because it failed to show
impairment or denial of the right to vote and failed to establish irreparable
injury warranting the issuance of a permanent injunction.

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particular HRS § 11-119(d) (2009), which requires delivery of a

‘sufficient number of ballots.’” Id. at 68, 365 P.3d at 997.

However, the ICA also concluded that the 2012 ballot method “was

not a ‘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.’” Id. The ICA reasoned that the

methodology used was “merely a data point,” that instead of a

policy statement it was a “one-time calculation/miscalculation,”

and there was nothing in the record to indicate that it would

ever be used again in the future. Id. Accordingly, the ICA

determined that the ballot order methodology was not a rule

subject to the rulemaking requirements of HAPA.10

The ICA next considered whether the procedures used by

a precinct to request additional ballots when the precinct runs

out of ballots and receives additional ballots were rules within

10
The ICA noted that Green Party did not petition the Chief
Election Officer for adoption or amendment of a rule, pursuant to HRS § 91-6.
Green Party of Haw., 137 Hawaiʻi at 69, 365 P.3d at 997. Thus, the ICA
determined it was not necessary to address whether the Office of Elections’
decision not to proceed with rulemaking was an abuse of discretion or,
alternatively, whether a “single formulaic methodology” would be impractical.
Id. (citing to Pilaʻa 400, LLC v. Bd. of Land & Nat. Res., 132 Hawaiʻi 247,
264, 320 P.3d 912, 929 (2014)). The ICA also noted that it was not necessary
to address whether the 2012 ballot method only concerned internal management
of the agency and did not affect the private rights of or procedures
available to the public because of its determination that the 2012 ballot
method was not a statement of general applicability and future effect. Id.
at 69-70, 365 P.3d at 997-99.

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the meaning of HRS § 91-1(4). The ICA concluded that “the

challenged procedure is directed exclusively to precinct workers

in the execution of their election day responsibilities.” Id.

at 70, 365 P.3d at 999. The ICA also stated, “[A]lthough the

procedure affects in an indirect way the public’s interest in

having reasonably prompt access to paper ballots on which to

cast their vote, it is aimed at prescribing and controlling

election-day workers in order to facilitate the rights of

voters, and not at the private rights of or procedures available

to the public.” Id. Thus, the ICA concluded that the

procedures to request additional ballots were not rules. Id.

With regard to the procedures used to address the

situation when votes are cast on ballots for the incorrect

precinct, the ICA concluded that the procedures employed were in

response to problems that the Chief Election Officer could not

reasonably foresee and that needed to be resolved despite the

absence of a general rule. 137 Hawaiʻi at 71, 365 P.3d at 1000.

Thus, the ICA concluded that the procedure relating to counting

the votes was not a statement of general applicability and

future effect directed at implementing, interpreting, or

prescribing law, policy, or procedural requirements. Id. The

ICA also noted that, alternatively, this procedure fell into the

internal management exception because it was only directed at

election workers and “it ensured preservation of--rather than

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affected--the private rights of and procedures available to the

public.” Id.

II. STANDARD OF REVIEW

“We review the circuit court’s grant or denial of

summary judgment de novo.” Querubin v. Thronas, 107 Hawaiʻi 48,

56, 109 P.3d 689, 697 (2005).

[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and the inferences drawn therefrom
in the light most favorable to the party opposing the
motion.

Durette v. Aloha Plastic Recycling, Inc., 105 Hawaiʻi 490, 501,

100 P.3d 60, 71 (2004) (alteration in original) (quoting Haw.

Cmty. Fed. Credit Union v. Keka, 94 Hawaiʻi 213, 221, 11 P.3d 1,

9 (2000)).

III. DISCUSSION

The primary issue before this court is whether the

Office of Elections’ procedures that Green Party challenges are

“rules” as defined by HAPA.11

11
Green Party also asserts that the circuit court and the ICA
applied the wrong standard to this case because both courts made reference to
the process by which a party may challenge an election result pursuant to HRS
§ 11-172. However, there is no indication in the record that the circuit
court or the ICA treated Green Party’s suit as an election challenge.

(continued. . .)

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In the underlying action, Green Party seeks a

declaratory judgment pursuant to HRS § 91-712 that certain

methodologies and procedures used by the Office of Elections in

the 2012 election are invalid under HAPA. HRS § 91-7 provides

for the review of the validity of an existing agency rule. In

re Application of Hawaiian Elec. Co., 66 Haw. 538, 541, 669 P.2d

148, 151 (1983).13 Accordingly, the relevant question under HRS

(. . .continued)

Green Party additionally argues that the ICA misinterpreted and
misapplied Pilaa 400, LLC v. Board of Land & Natural Resources, 132 Hawaiʻi
247, 320 P.3d 912 (2014). However it does not appear that the ICA
misinterpreted Pilaʻa, and, while the ICA discusses the Pilaʻa decision, it
did not apply Pilaʻa to this case.
12
HRS § 91-7 provides the following:

(a) Any interested person may obtain a judicial declaration
as to the validity of an agency rule as provided in
subsection (b) herein by bringing an action against the
agency in the circuit court of the county in which
petitioner resides or has its principal place of business.
The action may be maintained whether or not petitioner has
first requested the agency to pass upon the validity of the
rule in question.

(b) The court shall declare the rule invalid if it finds
that it violates constitutional or statutory provisions, or
exceeds the statutory authority of the agency, or was
adopted without compliance with statutory rulemaking
procedures.
13
This is in contrast to HRS § 91-6, which provides a process for
interested persons to petition an agency to adopt rules. In re Hawaiian
Elec. Co., 66 Haw. at 541, 669 P.2d at 151 (explaining that if an agency has
not adopted a rule, an interested person may petition for the adoption of
such rule, and also explaining that (i) if the agency refuses, then the
petitioning person would have an action in circuit court “of some nature,
such as a declaratory judgment action” or (ii) if the agency adopts a rule,
then the rule may be challenged pursuant to HRS § 91-7). Compare HRS § 91-6
with HRS § 91-7.

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§ 91-7 is not whether or not the agency should adopt a rule.

Instead, the pertinent question is whether the agency has

adopted a rule, and if so, then the issue becomes whether the

rule is valid.14 Id.; see HRS § 91-7.

The following is the definition of “rule” as provided

in HAPA:

“Rule” means each 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. The term does not include regulations concerning
only the internal management of an agency and not affecting
private rights of or procedures available to the public,
nor does the term include declaratory rulings issued
pursuant to section 91-8, nor intra-agency memoranda.

HRS § 91-1(4) (1965). Thus, there is a general definition of

“rule”: a “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.” Id. And, there is also an

14
Green Party suggests that the ICA and circuit court erroneously
held that Green Party was required to petition for agency rulemaking in order
to raise its HRS § 91-7 claims. However, there is no indication in the
record that the circuit court concluded that a petition for agency rulemaking
was necessary in order for Green Party to raise its HRS § 91-7 claims.
Rather, the circuit court held that “although [Green Party has] not submitted
such a petition [pursuant to HRS § 91-6], their decision to pursue an
alternative method of relief does not constitute a failure to state a claim
upon which relief may be granted.” In its opinion, the ICA noted that Green
Party failed to cite to evidence within the record to support its assertion
that the circuit court arrived at such a conclusion. Thus, the ICA declined
to find that the circuit court erred. Accordingly, we do not address Green
Party’s contention that the circuit court and the ICA considered a petition
to the Office of Elections for rulemaking to be a requirement for Green
Party’s HRS § 91-7 claim.

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exception to the general definition of “rule”: “regulations

concerning only the internal management of an agency and not

affecting private rights of or procedures available to the

public.” Id.

The general definition of “rule” under HAPA may be

divided into two basic elements. The first element is that the

agency statement be of (a) general or particular applicability

and (b) future effect. The second element provides that the

agency statement (a) implements, interprets, or prescribes law

or policy, or (b) describes the organization, procedure, or

practice requirements of any agency. Perhaps because of the

expansiveness of the second element, our cases have focused

mainly on the meaning of the first element--an agency statement

of general or particular applicability and future effect.

Additionally, Hawaiʻi appellate courts typically have

discussed the meaning of the general definition of “rule” in

cases where there is a question of whether the agency action is

legislative or adjudicative. See Pilaʻa 400, LLC v. Bd. of Land

& Nat. Res., 132 Hawaiʻi 247, 264, 320 P.3d 912, 929 (2014); In

re Application of Hawaiian Elec. Co., 81 Hawaiʻi 459, 466, 918

P.2d 561, 568 (1996); Shoreline Transp., Inc. v. Robert’s Tours

& Transp., Inc., 70 Haw. 585, 591, 779 P.2d 868, 872 (1989).

But see Aguiar v. Haw. Hous. Auth., 55 Haw. 478, 486, 522 P.2d

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1255, 1261 (1974) (addressing various arguments by the parties

regarding whether or not an agency regulation was a rule under

HAPA). This court has recognized that “rule-making is

essentially legislative in nature because it operates in the

future; whereas, adjudication is concerned with the

determination of past and present rights and liabilities of

individuals where ‘issues of fact often are sharply

controverted.’” In re Hawaiian Elec. Co., 81 Hawaiʻi at 467, 918

P.2d at 569 (quoting Shoreline Transp., Inc., 70 Haw. at 591,

779 P.2d at 872).

“In the most general terms, the purpose of rule-making

is to govern the future conduct of groups and individuals, not

determining damages resulting from past conduct.” Pilaʻa, 132

Hawaiʻi at 266, 320 P.3d at 931. Thus, rulemaking is defined

under HAPA as an agency statement of “general or particular

applicability” and “future effect.” HRS § 91-1(4). Because the

literal application of “particular applicability” would

completely obviate the adjudicatory function of administrative

agencies, we have interpreted HRS § 91-1(4) as requiring

generality of effect of the agency statement. In re Hawaiian

Elec. Co., 81 Hawaiʻi at 466, 918 P.2d at 568; Aguiar, 55 Haw. at

485 n.13, 522 P.2d at 1261 n.13. Additionally, the statement

must also have future effect, meaning that the statement will

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govern future conduct rather than make a determination of past

and present liabilities. In re Hawaiian Elec. Co., 81 Hawaiʻi at

466, 918 P.2d at 568. Thus, in order to distinguish rulemaking

from an agency’s adjudicatory function, HAPA requires that the

agency statement have general and future effect.

The exception to the definition of “rule” applies to

regulations that concern (a) only the internal management of the

agency and (b) do not affect private rights or procedures

available to the public. HRS § 91-1(4). Thus, the exception

was intended to have a “limited scope” because it only applies

if it both relates to internal management of the agency and it

does not affect private rights or public procedures. Aguiar, 55

Haw. at 488, 522 P.2d at 1262. And, “even in those states where

the statutory exemption is broader covering ‘all statements

concerning matters of internal management, . . . reliance must

be placed on courts to foreclose any tendencies that agencies

might exhibit to avoid the rule-making requirements by casting

regulations in terms of internal management.’” Id. at 489, 522

P.2d at 1263 (alteration in original) (quoting 1 F. Cooper,

State Administrative Law 116 (1965)).

Hawaiʻi appellate cases that consider whether

regulations concern only the internal management of the agency

often consider to whom the regulations are directed. If the

regulation is principally directed to its staff, then it is

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generally considered to be a matter of internal management. See

Rose v. Oba, 68 Hawaiʻi 422, 426, 717 P.2d 1029, 1031 (1986); see

also Doe v. Chang, 58 Haw. 94, 96, 564 P.2d 1271, 1273 (1977)

(noting that “[t]he only persons purporting to be instructed or

ordered” by the regulation were “the personnel of the

department”); In re Doe, 9 Haw. App. 406, 412, 844 P.2d 679, 682

(1992). This approach is supported by the legislative history

of HRS § 91-1(4):

It is intended by this definition of “rule” that
regulations and policy prescribed and used by an agency
principally directed to its staff and its operations are
excluded from the definition. In this connection your
Committee considers matters relating to the operation and
management of state and county penal, correctional,
welfare, educational, public health and mental health
institutions, operation of the National Guard, the
custodial management of the property of the state or county
or of any agency primarily a matter of ‘internal
management’ as used in this definition.

H. Stand. Comm. Rep. No. 8, in 1961 House Journal, at 656; see

also Rose, 68 Hawaiʻi at 426, 717 P.2d at 1031.

However, even if it is determined that a regulation

concerns only internal management of an agency, the exception

will apply only if it is also determined that the regulation

does not affect private rights or procedures available to the

public. In several cases, this court has considered whether

regulations affect private rights or public procedures. See

Nuuanu Valley Ass’n v. City & Cnty. of Honolulu, 119 Hawaiʻi 90,

100, 194 P.3d 531, 541 (2008) (holding an agency’s policy of

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refusing to publicly disclose the documents was itself a rule

because it affected the procedures available to the public and

violated an existing rule that the agency was to release such

documents to the public); Haw. Prince Hotel Waikiki Corp. v.

City & Cty. of Honolulu, 89 Hawaiʻi 381, 393, 974 P.2d 21, 33

(1999) (holding that a city appraiser’s methodology for

assessing the value of a golf course was a rule because the

methodology “undoubtedly affect[ed] the assessed value of the

golf course and the future assessments of all golf course

owners”); Rose, 68 Hawaiʻi at 427, 717 P.2d at 1032 (holding that

provisions in a hospital’s bylaws governing corrective action

against doctors did not affect private rights of or procedures

available to the public); Chang, 58 Haw. at 95, 564 P.2d at

1272-73 (holding that a manual of instructions to Department of

Social Services and Housing personnel concerning welfare fraud

investigations was not subject to HAPA rulemaking requirements);

Aguiar, 55 Haw. at 490, 522 P.2d at 1263 (holding that internal

regulations, which set forth maximum income limits for continued

occupancy by tenants in public housing and established a payment

schedule, were rules); see also In re Doe, 9 Haw. App. at 412,

844 P.2d at 682-83 (holding that field sobriety testing

procedures were instructional in nature only and did not affect

private rights).

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Specifically, Green Party claims that the Office of

Elections violated rulemaking requirements because of its

failure to adopt administrative rules pursuant to HAPA regarding

the methodology and procedures that were used to (a) determine

the number of ballots to be delivered to each precinct, (b)

request additional ballots when a precinct runs out of paper

ballots, and (c) address the situation when a voter votes on a

ballot that includes races in which the voter is not entitled to

vote. The chief election officer has not adopted administrative

rules with regard to these three procedures. Thus, if the

challenged procedures qualify as “rules” as defined in HAPA,

then they are invalid for not complying with HAPA’s statutory

rulemaking requirements. See HRS §§ 91-3, 91-7.

A. Methodology for Ordering a Sufficient Number of Ballots

HRS § 11-119 requires the chief election officer to

order a sufficient number of ballots for each precinct based on

the number of registered voters and expected spoilage. HRS §

11-119(d) (Supp. 2011). The Office of Elections has not adopted

an administrative rule that sets forth the methodology that is

used to determine that a sufficient number of ballots are

received by each precinct; however, the Office of Elections does

have a general method that it has consistently used for

calculating the number of ballots to order. This method used

prior to 2012 and for the 2012 Primary Election was consistent

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with HRS § 11-119(d)’s requirement that the ballot order be

based “on the number of registered voters” and the expected

spoilage. While the 2012 General Election ballot order method

was a modification from the previous year’s methodology, it was

used in an effort to order a sufficient number of ballots, and,

hence, its purpose was to implement or fulfill the requirements

of HRS § 11-119.

The ballot order method meets the generality element

of HRS § 91-1(4) as it is applied statewide for the ordering of

ballots in every precinct. The ballot order method additionally

meets the criterion that it be of future effect--this is true

whether one looks specifically at the calculation for the 2012

General Election or at the broader method of ordering ballots

that applied prior to and during the 2012 elections. The ballot

order method is used each election year to determine the number

of ballots to order for the upcoming election. While the

calculation used for the 2012 General Election was a

modification of the calculation used in previous years, it still

employed the same basic method of determining a base number of

voters and multiplying that base by a percentage reflecting the

amount of ballots required for each category of ballots.

Additionally, there is no indication that the formula

used for the 2012 General Election was a backward-looking

analysis used to determine past and present liabilities, such as

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would be used where the agency is exercising its adjudicatory

function. Rather, the decision to use a particular formula for

the 2012 General Election was “essentially legislative in

nature” because it would operate in the future for purposes of

calculating the number of ballots to order for every precinct in

the State for the 2012 election. See In re Hawaiian Elec. Co.,

81 Hawaiʻi at 467, 918 P.2d at 569 (“[R]ule-making is essentially

legislative in nature because it operates in the future;

whereas, adjudication is concerned with the determination of

past and present rights and liabilities of individuals where

‘issues of fact often are sharply controverted.’” (quoting

Shoreline Transp., Inc., 70 Haw. at 591, 779 P.2d at 872)).

Thus, the formula used for the 2012 General Election ballot

order was adopted for future and repeated use in the 2012

General Election as it applied to every precinct.

Further, the formula used for the 2012 General

Election was consistent with a more general ballot order

framework that consisted of determining a base number of voters

and multiplying that base by a percentage reflecting the amount

of ballots required for each category of ballots. The fact that

the Office of Elections has adopted this basic framework and

applied it historically, including during the 2012 Primary and

General Elections, is further evidence that the ballot order

method is a rule under the general definition of HRS § 91-1(4).

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The ICA characterized the calculation used for the

2012 general election in the following manner to support its

determination that it did not have future effect:

There was no policy statement or interpretation of the
statute; instead, there was a one-time
calculation/miscalculation of what would be a sufficient
number of blank ballots in the first instance, which was
exacerbated by general election day errors in the delivery
of reserve ballots. Importantly, it is clear from the
record that the methodology used to determine the number of
ballots was ad hoc, intended only for the 2012 elections;
due to the reapportionment/redistricting process and that
it involved unacceptably poor execution of an important
government function.

Green Party, 137 Hawaiʻi at 68, 365 P.3d at 997. We have several

concerns with the ICA’s analysis. First, as the ICA acknowledges

elsewhere in its opinion, there is no requirement that there be

a written methodology, and an unwritten practice or policy can

be a “statement,” as it was in Hawaii Prince and Nuuanu Valley

Association. Second, the ICA’s characterization of the 2012

calculation as a “one-time calculation/miscalculation” is

unsupported by the record. The 2012 formula was consistent with

a more basic ballot order method that the Office of Elections

historically applied, which involved determining a base number

of voters and multiplying that base by a specific percentage to

calculate the amount of ballots required for each category of

ballots. Third, whether or not the methodology was adopted in

an ad hoc manner is not determinative when considering whether

or not the regulation has future effect. Something can be both

ad hoc and have future effect; what is significant in this case

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is that the analysis was not backward-looking or post hoc.

Fourth, the record does not support the ICA’s finding that the

2012 calculation was used solely as a response to the

redistricting of 2011. Indeed, the Office of Elections was able

to order a sufficient number of ballots for the 2012 Primary

Election despite the reapportionment in 2011, using a formula

that more closely resembled the formula that was historically

used. Thus, the Office of Elections’ ballot order methodology

used for the 2012 General Election meets the general definition

of “rule” because it implements state law and is of general

applicability and has future effect.

We agree with Green Party that, because ballot

shortages may result in the deprivation of the right to vote,

the ballot order methodology does not qualify for the internal

management exception to the definition of a “rule.” The right

to vote is of “fundamental importance.” E.g., Hayes v. Gill, 52

Haw. 251, 269, 473 P.2d 872, 883 (1970). In order for the

public to exercise this essential private right, HRS § 11-119(d)

provides that each precinct must receive a sufficient number of

ballots. Thus, the method used for calculating the number of

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sufficient ballots required for an election affects a person’s

ability to exercise the right to vote.15

Furthermore, the methodology used for ordering ballots

impacts procedures available to the public as it affects the

methods of voting that are available to the public. The Office

of Elections’ ballot order methodology is not simply aimed at

ordering a ballot for each voter. Rather, it takes into account

the various methods of voting available. It appears that such a

methodology would attempt to both predict the preferred voting

methods and also to allocate what types of voting methods are

available and readily accessible to the public on election day.

For example, in this case, it appears that the procedure used

for the 2012 General Election employed reserve ballots and

electronic voting machines to supplement an insufficient order

of paper ballots.16

Additionally, there was an observable impact on the

procedures available to the public because some voters were not

15
It is clear that the methodology employed by the Office of
Elections in the 2012 General Election had a significant impact upon
many voters in exercising their right to vote. While the Office of
Elections concluded that the election “irregularities do not appear to
be legally sufficient to change the election results,” an actual impact
to an election result or on exercising the right to vote is not
determinative of whether HAPA rulemaking is required.
16
For the 2012 General Election, the Office of Elections increased
the number of reserve ballots ordered substantially from 6% of registered
voters to 25%.

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given the option of voting on a polling place ballot and instead

had to choose between a minority language ballot or an

electronic voting machine. This impact on the voting procedures

available to the public was referenced by the Office of

Elections’ answering brief that acknowledged that “voters

experienced unfortunate delays”17 and argued that voters were

given “the option of voting on an electronic voting machine, or

voting on minority language paper ballots” and that “voters do

not have a constitutional or statutory right to demand to cast

their vote using a particular method.” The voting methods

available to the public at the polling places on an election day

are procedures available to the public. Accordingly, to the

extent that an agency rule affects such procedures available to

the public, it does not fall under HRS § 91-1(4)’s exception for

regulations concerning only the internal management of an agency

and not affecting private rights of or procedures available to

the public.

Accordingly, the methodology or procedures used by the

Office of Elections to comply with the statutory mandate that

each precinct receives sufficient ballots affects the right to

vote and the voting procedures available to the public. As

17
Voters experienced delays as long as three hours. See supra note
2. Such delays present a significant hindrance to voters that could deter or
impair the exercise of the right to vote.

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such, the Office of Elections’ ballot order method is not a

regulation that concerns only internal management.18 Thus, the

ballot order method is a rule as defined in HRS § 91-1(4), and

the Office of Elections was required to adopt it pursuant to the

rulemaking procedures of HAPA.19

B. Monitoring of Ballots and Reliance on Reserve Ballots

Green Party also argues that the Office of Elections

has adopted rules without complying with HAPA rulemaking

requirements regarding the procedure by which precinct workers

monitor the supply of paper ballots at the polling places and

request additional ballots when necessary. The circuit court

found that “precinct workers monitor the supply of paper ballots

at the polling place and when it appears that the supply of

ballots is running low, a precinct worker calls the counting

center at the State Capitol and asks that reserve ballots for

that precinct be delivered.” Although the circuit court found

18
Additionally, even assuming the analysis used by the Office of
Elections for calculating what constitutes a sufficient number of ballots is
technical in some respects, it “cannot” be contended that the public’s view
on the subject “would be of no value” to the Office of Elections. See
Aguiar, 55 Haw. at 490, 522 P.2d at 1263. “In any event, the legislature has
already made the judgment through HAPA that an agency must consider the views
of interested persons where it seeks to promulgate a ‘rule,’ no matter how
complex is the data that goes into the rule’s formulation.” Id. at 487-88,
522 P.2d at 1262.
19
Future rulemaking regarding the methodology for ordering ballots
should be done in furtherance of and consistent with the requirement of HRS §
11-119(d) that each precinct “shall receive a sufficient number of ballots
based on the number of registered voters and the expected spoilage in the
election concerned.”

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that precinct workers engage in this practice, there does not

appear to be any evidence in the record to support the existence

of an established procedure or agency statement instructing

precinct workers to act in such a manner. Accordingly, because

the record lacks evidence to support Green Party’s argument that

the Office of Elections adopted a particularized internal

procedure regarding the monitoring of paper ballots at the

precincts, we affirm the circuit court’s grant of summary

judgment on the second count of Green Party’s complaint

regarding the purported procedure for monitoring the level of

ballots and requesting additional ballots.

C. Procedure for Counting Votes Cast on Ballots for the
Incorrect Precinct

During the 2012 General Election, voters at two

precincts were provided paper ballots for the wrong precinct,

resulting in fifty-seven voters voting on ballots for the

incorrect precinct.20 Green Party challenges the procedure that

was used for counting the votes cast on ballots for the

incorrect precinct. The Office of Elections has not set out the

manner in which it counts votes cast on such ballots in an

administrative rule. The circuit court found that “[i]n

20
It is noted that these voters were not able to vote for the state
representative, state senate, and council district contests in their
respective precincts.

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counting the votes cast on a wrong ballot, all of the votes cast

in races for which the voters in that precinct are entitled to

vote are counted and all of the votes cast in races for which

the voters in that precinct are not entitled to vote are not

counted.” Based on Nago’s description of the events of the 2012

General Election voting day, it appears that a procedure is in

place for when such a situation occurs:

The precinct counters are programmed to only read ballots
of the specific ballot type associated with that precinct.
As such the precinct counters rejected the ballots and
would not read them. In situations where the precinct
counter will not read a ballot, the voter is able to have
it deposited in the emergency ballot bin, where it will be
scanned at a later time. This is what occurred at Hokulani
Elementary School and Waialae Elementary School for those
voters provided the incorrect ballot at the end of the day.

Accordingly, given that the precinct counters were programmed to

only read ballots associated with a specific precinct, the

Office of Elections adopted procedures for counting votes cast

on ballots for the incorrect precinct. This procedure meets the

generality element as it would undoubtedly apply statewide to

any votes cast on a ballot for a precinct in which the voter is

not entitled to vote. It also meets the criterion that it be of

future effect because the Office of Elections would have adopted

this rule prior to the election as the precinct counters are

only programmed to read the correct ballots.

The ICA concluded that the procedure did not meet the

general definition of a “rule,” stating, “It does not appear

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that this procedure was a statement of general applicability and

future effect directed at implementing, interpreting, or

prescribing law, policy or the procedural requirements of the

Office of Elections.” Green Party, 137 Hawaiʻi at 71, 365 P.3d

at 1000. The ICA’s reasoning in this regard was the following:

“Rather it appears that the out-of-precinct ballots were

problems that the Chief Elections Officer ‘could not reasonably

foresee, problems which [needed to] be resolved despite the

absence of a general rule.’” Id. (alteration in original)

(quoting In re Hawaiian Elec. Co., 81 Hawaiʻi at 468, 918 P.2d at

570). However, as discussed above, the record clearly shows

that the Office of Elections did in fact adopt a procedure to

apply under circumstances when votes were cast on ballots for

the incorrect precinct.

The exception to the general definition of “rule”

would not apply to any procedure or policy in place for the

counting of votes cast on ballots for a precinct in which the

voter is not entitled to vote. Even assuming that the procedure

only concerned internal management of the agency, the method

used by the Office of Elections would have a direct impact on

the right to vote, including the private right of voters to have

their votes counted. Such a policy would not only affect the

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private right to vote, but it could also impact the outcome of

an election or require a new election.21 Cf. Aguiar, 55 Haw. at

489, 522 P.2d at 1263 (reasoning that regulations that

“determined every tenant’s eligibility to remain in public

housing,” “[p]lainly, therefore, . . . ‘affected’ in both a

practical and a legal sense the ‘private rights’ not only of

those tenants actually living in public housing but also those

members of the public at large who were interested in becoming

tenants”).

The ICA concluded that the Office of Elections’ method

for counting votes cast on ballots for the incorrect precinct

would not affect private rights. The following is the ICA’s

reasoning:

The procedure is clearly directed only at election workers;
it was aimed at ensuring that all votes entitled to be
counted were in fact counted and that no votes were counted
in violation of HRS § 11-12 (2009); it did not purport to
regulate public conduct; and it ensured perseveration of--
rather than affected--the private rights of and procedures
available to the public.

Green Party, 137 Hawaiʻi at 71, 365 P.3d at 1000. However, a

policy that is employed to determine whether a vote will or will

not be counted when a voter votes on a ballot associated with a

21
Nago’s November 20, 2012 memorandum noted that this procedure
applied to a total of forty-six ballots cast at Hokulani Elementary School
and eleven at Waialae Elementary school.

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precinct in which the voter is not entitled to vote affects the

private right to vote.

For the reasons discussed, the procedure used by the

Office of Elections for counting votes cast on ballots for a

precinct in which the voter is ineligible to vote is a “rule”

under HAPA, and it should have been adopted according to the

required rulemaking procedures.

IV. CONCLUSION

The ICA’s January 27, 2016 Judgment on Appeal is

vacated to the extent that it affirms the circuit court’s

granting of summary judgment in favor of the Chief Election

Officer regarding the ballot order methodology and procedure for

counting votes cast on ballots for the incorrect precinct, the

first and third counts of Green Party’s complaint. The ICA’s

Judgment on Appeal is affirmed to the extent that it affirms the

circuit court’s granting of summary judgment in favor of the

Chief Election Officer regarding the procedures for monitoring

the level of ballots, the second count of the complaint.

Additionally, the circuit court’s October 24, 2014 Final

Judgment is vacated to the extent that it grants summary

judgment in favor of the Chief Election Officer regarding the

first and third counts of the complaint. The case is remanded

to the circuit court with directions to enter summary judgment

in favor of Green Party on the first and third counts of the

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complaint and enter a judgment declaring the rules challenged by

the first and third counts as invalid pursuant to HRS § 91-7.

Lance D. Collins /s/ Mark E. Recktenwald
for petitioners
/s/ Paula A. Nakayama
Kimberly Tsumoto Guidry
for respondents /s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

38