Key Points

  • The Hawaii Supreme Court granted a writ of mandamus requiring the Office of Elections to provide staff support for a meeting of the Elections Commission when any single commissioner requests it while the chair is vacant.
  • The court held that HRS § 11-1.5(b) imposes a ministerial duty triggered by the commission's request, with no prior vote required, and that a lone member's request to schedule a meeting is not board business under the Sunshine Law.
  • A chairperson pro tem may be elected by a majority of five commissioners; the two-thirds requirement of HRS § 11-7(b) applies only to selecting the permanent chairperson.
  • The court rejected the office's arguments that the chief justice fills the vacant chair under HRS § 11-7(c) and that the commission's adoption of Robert's Rules was unlawful rulemaking, while reserving the separation-of-powers question about the chief justice's appointment role.
  • Individual commissioners had standing to seek mandamus pro se without commission authorization, and the petition was not moot because the commission still had not met.

The Hawaii Supreme Court on Oct. 30 ordered the state Office of Elections to help the Elections Commission, the board that supervises it, hold its first meeting since June. The court ruled that when the commission has no chairperson, any single member may ask the office for the staff support a meeting requires, and the office must provide it.

Justice Todd W. Eddins wrote for the five-member court, which granted a writ of mandamus. No justice wrote separately. Two commissioners, Ralph Cushnie and Tamara McKay, brought the petition. The court also held that once the commissioners convene, they may elect a temporary presiding officer, a chairperson pro tem, by a simple majority of five votes rather than the two-thirds needed to choose a permanent chair.

The decision ends an arrangement in which the agency the commission oversees controlled whether the commission could meet at all. The commission appoints the chief election officer who runs the office, may remove that officer for cause, and must evaluate the officer's performance within two months after a general election is certified. "The very agency the Commission oversees decides whether the Commission may meet," Eddins wrote. "A Commission kept from meeting shuts the public out as surely as one that meets secretly."

The legislature created the commission in 2004. Eight appointed members select a ninth as chairperson by a two-thirds vote, while the commission conducts other business by majority vote. Chair Michael Curtis's term was set to end on June 30, 2026. At a June 10 meeting the commissioners could not muster six votes for his successor. They then split over a pro tem chair, with Cushnie arguing under Robert's Rules of Order that five votes sufficed and Commissioner Jeffrey Osterkamp insisting on six. Curtis canceled the follow-up meeting by email.

The stalemate was mechanical, according to the opinion. The commissioners lack one another's phone numbers and email addresses, so the office relays their messages. It also keeps the commission's mailing list of people who have asked for notice of meetings, notice that the Sunshine Law, Hawaii's open-meetings statute, requires. When McKay, appointed June 15, and Cushnie sought to notice a July 8 meeting, the office refused to staff it and never turned over the list. They filed their petition that day.

The statute at issue provides that the office "shall provide staff support to the elections commission, as requested by the elections commission." The office argued that it owed support only at a chair's request or after a majority vote at a public meeting. After the court ordered more briefing, the office shifted, saying five members could jointly settle on a date outside a meeting.

The court called the office's position a catch-22. "The meeting needs the Office, and the Office waits for the meeting," Eddins wrote. The statute requires a request, not a prior vote, the court held, and "when the chair seat is empty and the schedule stalls, a single member's request to convene is a request by the Commission." A five-assent rule, the court added, "makes the Office the only channel for those assents," because commissioners reach one another only through it.

The court also faulted the office for citing a letter from the Office of Information Practices advising that the commission could notice its own meeting, while withholding the mailing list such notice requires. "The Office can't lock the door and call it open," Eddins wrote.

One commissioner's request does not violate the Sunshine Law, the court held, because arranging a meeting is housekeeping, not board business. "Nothing is decided or advanced when members compare calendars," Eddins wrote. The first meeting's agenda must be limited to organizational business, chiefly electing a pro tem chair.

On that vote, the court held that the two-thirds requirement attaches only to the permanent chair's seat. "A majority will do for a temporary turn in the chair," Eddins wrote. If only five commissioners attend, all five must agree. The court rejected the office's argument that adopting Robert's Rules was unlawful rulemaking under the Hawaii Administrative Procedure Act, finding the rules an internal procedure. "Robert's Rules orders the Commission's own meetings and affects no one else," the court said.

The office further argued that a chair vacancy unfilled for 15 days passes to the chief justice under the commission statute. The court disagreed, noting that vacancies are filled "in the same manner as the original appointment" and that the chief justice must pick someone from the departing member's county, though the chair's seat has no county tie. "The county-match rule collapses at the chair," Eddins wrote. The court left open what role the statute gives the chief justice in filling vacancies on an elections body, and whether the state constitution permits it, calling that "a separation-of-powers question for a case that presents it."

The court rejected the office's challenges to standing and mootness, holding that the commissioners could sue on their own behalf and that the harm continued because the commission still has not met. It found the office's duty ministerial, meaning it leaves no room for discretion. "A duty is clear, cramped reading or not," Eddins wrote. "Otherwise, a public officer could defeat mandamus by disputing the duty."

Acting Chief Justice Sabrina S. McKenna, Justice Lisa M. Ginoza and Circuit Judges Peter T. Cahill and Dyan M. Medeiros, sitting by assignment, joined the opinion. The court heard argument on Oct. 16.

Cushnie and McKay represented themselves. The respondents were represented by Aaron H. Schulaner and Nietzsche L. Tolan, with Randall S. Nishiyama on the briefs.

Under the writ, the Office of Elections must, on the request of any member, give the commission the staff support it needs to notice and hold a meeting. The commission may then convene and elect a chairperson pro tem. Selecting a permanent chair still requires a two-thirds vote of the eight appointed members.