***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

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 

Electronically Filed

Supreme Court

SCWC-14-0001313

19-JUL-2016

08:46 AM
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 2 

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. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 3 

 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.” 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 4 

(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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 5 

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. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 6 

 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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 7 

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.” 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 8 

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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 9 

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.” 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 10 

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. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 11 

 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. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 12 

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. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 13 

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. . .) 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 14 

 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. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 15 

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. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 16 

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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 17 

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. . .) 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 18 

 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. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 19 

§ 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. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 20 

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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 21 

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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 22 

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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 23 

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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 24 

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). 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 25 

 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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 26 

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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 27 

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). 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 28 

 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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 29 

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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 30 

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%. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 31 

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. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 32 

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.” 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 33 

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. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 34 

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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 35 

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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 36 

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. 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 37 

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 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

 38 

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 

for petitioners 

Kimberly Tsumoto Guidry 

for respondents 

/s/ Mark E. Recktenwald 

/s/ Paula A. Nakayama 

/s/ Sabrina S. McKenna 

/s/ Richard W. Pollack 

/s/ Michael D. Wilson