Electronically Filed
Supreme Court
SCPW-18-0000733
26-SEP-2018
10:11 AM

S. C. No. _______________________
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
CITY AND COUNTY OF HONOLULU,
COUNTY OF HAWAIʻI, COUNTY OF
MAUI, COUNTY OF KAUAʻI,

ORIGINAL PROCEEDING
CIVIL NO. 18-1-1326-08 (JPC)
(Declaratory Judgment; Injunctive Relief)

Petitioners,
PETITION FOR EXTRAORDINARY WRIT
SEEKING PRE-ELECTION RELIEF

vs.
STATE OF HAWAIʻI; SCOTT NAGO, in his
capacity as Chief Election Officer; RONALD
D. KOUCHI, in his capacity as President of
the Hawaiʻi Senate; SCOTT K. SAIKI, in his
capacity as Speaker of the Hawaiʻi House,
Respondents.

PETITION FOR EXTRAORDINARY WRIT SEEKING PRE-ELECTION RELIEF
DECLARATION OF ROBERT M. KOHN
EXHIBITS “1” – “19”
CERTIFICATE OF SERVICE

 DONNA Y. L. LEONG
3226
Corporation Counsel
ROBERT M. KOHN
6291
NICOLETTE WINTER
9588
Deputies Corporation Counsel
City and County of Honolulu
530 South King Street, Room 110
Honolulu, Hawaiʻi 96813
Telephone: (808) 768-5193
Facsimile: (808) 768-5105
cor@honolulu.gov
robert.kohn@honolulu.gov
nwinter@honolulu.gov

PATRICK WONG
5878
Corporation Counsel
BRIAN A. BILBERRY
7260
Deputy Corporation Counsel
County of Maui
200 South High Street
Wailuku, Hawaiʻi 96793
Telephone: (808) 270-7740
Facsimile: (808) 270-7152
pat.wong@co.maui.hi.us
brian.bilberry@co.maui.hi.us

Attorneys for Petitioner
CITY AND COUNTY OF HONOLULU

Attorneys for Petitioner
COUNTY OF MAUI

JOSEPH K. KAMELAMELA 2493
Corporation Counsel
LAUREEN L. MARTIN
5927
Deputies Corporation Counsel
County of Hawaiʻi
101 Aupuni Street, Unit 325
Hilo, Hawaiʻi 96720
Telephone: (808) 961-8251
Facsimile: (808) 961-8622
joe.kamelamela@hawaiicounty.gov
laureen.martin@hawaiicounty.gov

MAUNA KEA TRASK
8418
County Attorney
MATTHEW M. BRACKEN 10267
First Deputy County Attorney
County of Kauai
4444 Rice Street, Suite 220
Lihue, Hawaiʻi 96766
Telephone: (808) 241-4930
Facsimile: (808) 241-6319
mtrask@kauai.gov
mbracken@kauai.gov

Attorneys for Petitioner
COUNTY OF HAWAIʻI

Attorneys for Petitioner
COUNTY OF KAUAʻI

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................3
A.

B.

FACTUAL BACKGROUND..................................................................................3
1.

The ballot question language specified by SB 2922 ..................................3

2.

The Counties’ real property tax revenues...................................................4

3.

Requested pre-election relief......................................................................5

PROCEDURAL BACKGROUND..........................................................................5

LEGAL STANDARDS ...................................................................................................................6
A.

A Ballot Question Must Be Clear and Not Misleading ...........................................6

B.

The Average Voter Is the Touchstone for Construing Ballot Questions .................7

C.

Pre-Election Challenges Are Preferable to Post-Election Challenges.....................7

ARGUMENT...................................................................................................................................8
I.

The Ballot Question Should Be Invalidated Because It Is Unclear and Misleading................8
A.

It is misleading to ask voters to authorize a tax without using the word “tax”........8

B.

“Investment real property” is misleading because “investment” is not defined......9

C.

It is misleading to tell voters the ballot measure is to “support public education”
when the proposed constitutional amendment does not require the legislature to
increase spending for public education..................................................................10

D.

The phrase “as provided by law” misleads voters into thinking that current law
already allows the state legislature to impose a real property tax when in fact it
does not ..................................................................................................................11

II. An Extraordinary Writ Is the Only Way for the Counties to Obtain the Pre-Election Relief
They Are Seeking...................................................................................................................11
CONCLUSION..............................................................................................................................14

i

 TABLE OF AUTHORITIES
Page
Hawaiʻi Cases
Blair v. Cayetano,
73 Haw. 536, 836 P.2d 1066 (1992) ....................................................................................... 12
Lane v. Fern,
20 Haw. 290 (1910) ................................................................................................................ 12
Office of Disciplinary Counsel v. Au, Nos. 26517 & 28323,
2007 Haw. LEXIS 18, 2007 WL 624157 (Jan. 19, 2007) ...................................................... 13
State ex rel. Bronster v. Yoshina,
84 Haw. 179, 932 P.2d 316 (1997) ..................................................................................... 7, 12
Other Cases
Askew v. Firestone,
421 So. 2d 151, 156 (Fla. 1982).............................................................................................. 13
Boucher v. Bomhoff,
495 P.2d 77 (Alaska 1972)...................................................................................................... 11
Boyd v. Jordan,
35 P.2d 533 (Cal. 1934) ........................................................................................................ 8, 9
City of McAllen v. McAllen Police Officers Union,
221 S.W.3d 885 (Tex. App. 2007).......................................................................................... 12
Gallivan v. Walker,
54 P.3d 1069 (Utah 2002)....................................................................................................... 14
Helton v. Jacobs,
57 S.W.3d 180 (Ark. 2001)..................................................................................................... 12
Kendoll v. Rosenblum,
364 P.3d 678 (Or. 2015) ........................................................................................................... 7
Kromko v. Superior Court,
811 P.2d 12 (Ariz. 1991)........................................................................................................... 8
Let Miami Beach Decide v. City of Miami Beach,
120 So. 3d 1282, (Fla. App. 2013).......................................................................................... 12
Lopez v. Kase,
975 P.2d 346 (N.M. 1999) ...................................................................................................... 14
Molera v. Arizona,
(available on Arizona Supreme Court website) ...................................................................... 13

ii

 McKinney v. Superior Court,
21 Cal. Rptr. 3d 773 (2004) .................................................................................................... 14
Parents Involved in Community s Schs v. Seattle School Dist. No. 1,
72 P.3d (Wash. 2003)................................................................................................................ 7
Roberts v. Priest,
20 S.W.3d 376 (Ark. 2000)................................................................................................... 6, 7
State ex rel. Voters First v. Ohio Ballot Bd.,
978 N.E.2d 119, 120, 122, 130 (Ohio 2012)........................................................................... 12
Stop Slots Md 2008 v. State Bd. of Elections,
34 A.3d 1164 (Md. 2012) ......................................................................................................... 7
United States v. Bongiorno,
2006 U.S. Dist. LEXIS 24830, (S.D.N.Y. May 1, 2006)...........................................................6
Walton v. McDonald,
97 S.W.2d 81 (Ark. 1936)............................................................................................. 9, 10, 11
Watland v. Lingle,
104 Haw. 128, 85 P.3d 1079 (2004) ......................................................................................... 7
Constitution
Haw. Const., art. VIII.................................................................................................................. 1, 3
Haw. Const., art. X.......................................................................................................................... 3
Statutes
Cal. Elec. Code § 9087(b)............................................................................................................... 7
HRS § 46-72 ................................................................................................................................... 4
HRS § 11-118.5 ...................................................................................................................... 2, 3, 6
HRS § 602-5 ................................................................................................................................... 3
HRS § 602-58(1)............................................................................................................................. 6
Utah Code Ann. § 20A-7-703(2)(b)................................................................................................ 7
Rules
HRAP Rule 11(b)(1) ....................................................................................................................... 5
HRAP Rule 12.1 ............................................................................................................................. 6

iii

 HRAP Rule 21 ...................................................................................................................... 3, 7, 13
HRAP Rule 27(a)............................................................................................................................ 6
HRAP Rule 40.2 ............................................................................................................................. 6
HRE Rule 201(b) ............................................................................................................................ 4

Other Authorities
BLACK'S LAW DICTIONARY (9th ed. 2009)................................................................................ 6, 13

iv

 S. C. No. _______________________
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
CITY AND COUNTY OF HONOLULU,
COUNTY OF HAWAIʻI, COUNTY OF
MAUI, COUNTY OF KAUAʻI,
Petitioners,

ORIGINAL PROCEEDING
CIVIL NO. 18-1-1326-08 (JPC)
(Declaratory Judgment; Injunctive Relief)
PETITION FOR EXTRAORDINARY WRIT
SEEKING PRE-ELECTION RELIEF

vs.
SCOTT NAGO, in his capacity as Chief
Election Officer, RONALD D. KOUCHI, in
his capacity as President of the Hawaiʻi, in his
official capacity, SCOTT K. SAIKI, in his
capacity as Speaker of the Hawaiʻi House,
Respondents.

PETITION FOR EXTRAORDINARY WRIT SEEKING PRE-ELECTION RELIEF
INTRODUCTION
The Hawaiʻi Constitution grants the Petitioner Counties exclusive authority over real
property taxation (article 8, section 3), and this is the only constitutionally-dedicated source of
tax revenues the counties can assess and receive. The legislature has proposed a ballot question
for the upcoming general election on November 6, 2018, that would amend the Hawaiʻi
Constitution by carving away at the counties’ exclusive authority to impose real property taxes
by allowing the legislature to impose a tax on certain real property.
But, the ballot question fails to mention that a new “tax” is at stake.
The Petitioner Counties1 challenge the ballot question because it is unclear and
misleading. The ballot question, using the exact language proposed by the legislature in

City and County of Honolulu, County of Hawaiʻi, County of Maui, and County of Kauaʻi
(collectively “Counties”).
1

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 SB 2922,2 will ask Hawaiʻi voters the following question:

Shall the legislature be authorized to establish, as
provided by law, a surcharge on investment real
property to be used to support public education?3
The standard for reviewing ballot questions is set out in Hawaiʻi Revised Statutes
(“HRS”) § 11-118.5, providing in pertinent part that the “language and meaning of a
constitutional amendment shall be clear and it shall be neither misleading nor deceptive.” HRS §
11-118.5.
The ballot question is unclear and misleading in multiple ways:
1 “surcharge”

It is misleading to ask voters to amend the constitution to authorize the
legislature to impose a new tax without using the word “tax”: using the
unclear euphemism “surcharge” without referring to “tax” disguises the
tax.

2 “investment”
real property

The legislature could consider all real property, including personal
residences, to be a form of investment, and so the word “investment” is
unclear and misleading.

3 “to be used to This phrase could mislead voters into thinking that a Yes vote will
support public
education”
increase spending for public education when nothing in SB 2922 requires
such a result.
4 “as provided
by law”

The legislature is not presently authorized to establish a real property tax
surcharge and, therefore, “as provided by law” is unclear and misleading.

2

See Exhibit 1, SB 2922, S.D.1, H.D.1, 2018 Legislature (“SB 2922”).

3

See Exhibit 2, ballot specimens for each of the four Counties.

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 The present writ presents two essential questions for this Court’s determination:
(1)

Should the unclear and misleading ballot question be invalidated?

(2)

Are the Counties entitled to pre-election relief?

The Counties contend that the ballot question is unclear and misleading, in violation of
HRS § 11-118.5 and should be invalidated prior to the election.
As for pre-election relief, Respondent Chief Election Officer Nago has made clear that it
is no longer practical to change the printed ballots prior to the November 6, 2018, general
election (“General Election”), but if a court were to declare the ballot question to be invalid, he
could issue a public proclamation stating that the question regarding the constitutional
amendment should not have appeared on the ballot and should be considered stricken, and that
any votes for or against the measure will not be counted and have no impact.
This is the relief the Counties seek in this writ,4 and there is ample case law in Hawaiʻi
and other jurisdictions holding that pre-election relief is available.
BACKGROUND
A.

FACTUAL BACKGROUND
1.

The ballot question language specified by SB 2922.

The 2018 Legislature proposed a constitutional amendment to Articles VIII and X of the
Hawaiʻi Constitution. See Exhibit 1, SB 2922. The legislature specified the exact constitutional
ratification question to be printed on the General Election ballot.5

4

This is a petition for an extraordinary writ for pre-election relief, but it does not turn on legal
distinctions between the various forms of writ. The Counties alternatively seek (1) a writ of
mandamus or prohibition (HRS § 602-5, considered in light of HRAP Rule 21, gives this Court
jurisdiction over all such writs), or (2) a petition to accept original jurisdiction.
5

See Exhibit 1, SB 2922 §4; Exhibit 3, Nago Declaration dated Sept. 5, 2018, §§ 7, 9.

-3-

 2.

The Counties’ real property tax revenues.

For 40 years, since the 1978 Constitutional Convention, the Hawaiʻi Constitution has
granted the Counties exclusive authority over real property taxation, which is their only
constitutionally-dedicated source of tax revenue. The revenues derived from real property taxes
for the Counties in fiscal year 2018-2019 total $1.265 billion, or about 85% of the General Funds
for City and County of Honolulu, $318 million for Maui, $310 million for Hawaiʻi County, and
$135 million for Kauaʻi.6 This tax revenue is critical to support most county-provided core
services, including public safety, sanitation and sewer facilities, parks and recreation, human
resources, facility maintenance, planning and permitting, maintenance and repair of highways
and streets, and the legislative and administrative governance functions of the Counties. Such tax
revenue also helps pay for the Counties’ numerous capital improvement projects.
The State of Hawaiʻi, by contrast, has numerous major sources of tax revenues that are
not available to the Counties. For example, 48% of State revenue ($3.2 billion) was derived from
the general excise tax in fiscal year 2016-2017, and 32% ($2.1 billion) from individual income
tax.7 The State also derives substantial revenues from the transient accommodations tax, the
corporate income tax, the insurance premiums tax, and other taxes, altogether producing over $6
billion in revenue.8

6

See City Reports on the Department of Budget and Fiscal Services Real Property Assessment
Division website, available at https://www.realpropertyhonolulu.com/rpa-report/#2018.
The Counties ask the Court to take judicial notice of the matters in official websites cited in the
writ and its exhibits pursuant to Rule 201(b) of the Hawaiʻi Rules of Evidence because they are
not subject to reasonable dispute because they are “capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned.”
7

See State Reports on the Department of Budget and Fiscal Services Real Property Assessment
Division website, available at https://www.realpropertyhonolulu.com/rpa-report/#2018.
8

Id.

-4-

 3.

Requested pre-election relief.

Respondent Chief Election Officer Nago has made clear that it is no longer practical to
change the ballot prior to the General Election.9 However, if a court were to find the ballot
question to be invalid, he could issue a public proclamation stating that the question regarding
the constitutional amendment should not have appeared on the ballot and should be considered
stricken, and that any votes for or against the measure will not be counted and have no impact.10
B.

PROCEDURAL BACKGROUND
The Counties’ filed a second amended complaint for declaratory and injunctive relief on

August 29, 2018. 11 On August 31, 2018, they filed a motion for preliminary injunction seeking
to invalidate the SB 2922 ballot question. The circuit court, with the Honorable Jeffrey P.
Crabtree presiding, denied the motion in a written order dated September 20, 2018 (Exhibit 5),
and certified the question for interlocutory appeal on September 21, 2018.
The Counties intend to file a prompt notice of appeal. However, it will be virtually
impossible to present the issue to the Hawaiʻi Supreme Court in time to receive relief prior to the
General Election. The circuit court clerk will have up to 60 days to assemble, certify, and
electronically transmit the record to the appellate clerk (HRAP 11(b)(1)),12 which might be
completed after the General Election. There are also a number of additional procedural hurdles,
including required actions by courts and court clerks that must take place before the appeal can

9

Exhibit 3, Nago declaration dated Sept. 5, 2018 ¶ 25 et seq.

10

Id. ¶ 63, 64; Exhibit 4, Nago declaration dated Aug. 31, 2018, ¶ 61.

11

City and County of Honolulu, et al. v. Ige, et al., Civ. No. 18-1-1326-08 JPC.

12

See, e.g., Radcliffe v. State, No. CAAP-17-0000594 (notice of appeal filed on Aug. 9, 2017,
dkt. no. 1, and record on appeal filed six weeks later on Sept. 26, 2017, dkt. no. 15.)

-5-

 be brought before this Court.13
In light of the foregoing, the present extraordinary writ is the only practical way that the
Counties can obtain pre-election relief.
LEGAL STANDARDS
A.

A Ballot Question Must Be Clear and Not Misleading.

HRS § 11–118.5 (“Constitutional amendments, proposed”) sets the standard for
constitutional amendments, including ballot questions: “The language and meaning of a
constitutional amendment shall be clear and it shall be neither misleading nor deceptive.” This
expresses three separate requirements—clear, not misleading, and not deceptive—such that a
ballot measure that violates any one of them is invalid.
“Clear” means “free from doubt; sure” or “unambiguous.” BLACK’S LAW DICTIONARY
287 (9th ed. 2009). On the other hand, no legislative definition is provided sufficient to
distinguish between “misleading” and “deceptive”14 and, therefore, this petition will focus on the
“clear” and “not misleading” requirements.
A ballot question can be misleading in different ways. Roberts v. Priest, 20 S.W.3d 376,

13

Statements of jurisdiction (and opposition) are filed within ten days after record on appeal is
filed. HRAP 12.1. An application for transfer to the supreme court may be filed no earlier than
ten days after the filing of the record on appeal (HRAP 40.2(a)(2)). Any response is due five
days later. HRAP 40.2(d), 27(a). Transfer will be mandatory under HRS § 602-58(1) because the
validity of the ballot question is a “question of imperative or fundamental public importance.”
The supreme court would then have thirty days to grant the mandatory application. HRAP
40.2(f). The Counties could then move under FRAP 27(a) for an expedited briefing schedule and
oral argument set prior to the election to obtain the pre-election relief they are requesting, but it
is highly unlikely this could take place prior to the General Election.
14

Dictionary definitions of “deceptive” can be circular or reference “misleading.” See, e.g., the
authoritative WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE
UNABRIDGED 585 (1986), defining “deceptive’ as “tending to deceive: having power to
mislead.”); United States v. Bongiorno, 2006 U.S. Dist. LEXIS 24830, at *20 (S.D.N.Y. May 1,
2006) (quoting previous Webster’s definition).

-6-

 380 (Ark. 2000) (A ballot question “must be free from any misleading tendency, whether of
amplification, of omission, or of fallacy….” The central question for a court is “whether, in the
voting booth, the voter is able to reach an intelligent and informed decision for or against the
proposal and to understand the consequences of his or her vote….” Id.)
B.

The Average Voter Is the Touchstone for Construing Ballot Questions.

The “average voter” is the “touchstone” for construing ballot questions. Parents Involved
in Community Schools Schs v. Seattle School Dist. No. 1, 72 P.3d 151, 154 (Wash. 2003)
(quoting Ninth Circuit order).15
C.

Pre-Election Challenges Are Preferable to Post-Election Challenges.

“[E]fficient use of public resources demand that we not allow persons to gamble on the
outcome of the election contest then challenge it when dissatisfied with the results, especially
when the same challenge could have been made before the public is put through the time and
expense of the entire election process.” State ex rel. Bronster v. Yoshina, 84 Hawai‘i 179, 185,
932 P.2d 316, 322 (1997). The “better practice” is “to expedite legal action prior to the election.”
Id.; accord, Watland v. Lingle, 104 Hawai‘i 128, 137, 85 P.3d 1079, 1088 (2004).
Extraordinary writs are expressly authorized by FRAP 21(e).

15

See also Cal Elec Code § 9087(b) (“information the average voter needs to adequately
understand the measure”); Utah Code Ann. § 20A-7-703(2)(b) (“clear and concise language that
will easily be understood by the average voter”); Kendoll v. Rosenblum, 364 P.3d 678, 682
(Ore. 2015) (“in a manner that is understandable to the average voter”); Stop Slots Md 2008 v.
State Bd. of Elections, 34 A.3d 1164, 1179 (Md. 2012) (“to permit an average voter…to
exercise an intelligent choice.”) (Emphases added to all quotations.)

-7-

 ARGUMENT
I.

The Ballot Question Should Be Invalidated Because It Is Unclear and Misleading.
A.

It is misleading to ask voters to authorize a tax without using the word “tax.”

All voters know what a “tax” is.16 On the other hand, voters are unlikely to know what a
“surcharge” means and that it can be a tax,17 or that a Yes vote on the ballot question could
authorize a new tax imposed by the legislature on their real property.
The voter turnout for the last non-presidential general election in 2014 was 369,642, or
52.3% of all registered voters18 and, of those 369,642 voters, as many as 40% (147,993) could
have been homeowners who held their property in fee.19
It is impermissible to make “no reference whatsoever to a tax, even though the sole
purpose of the measure was to raise revenue for government.” Kromko v. Superior Court, 811
P.2d 12, 20 (Ariz. 1991), discussing Boyd v. Jordan, 35 P.2d 533, 534 (Cal. 1934). Nor is it
permissible to “describe[] everything that could induce electors to sign but omit[] the one aspect
that would cause hesitation—the imposition of new taxes.” Id. at 21, citing Boyd at 459.
The California Supreme Court granted a writ in Boyd to compel the secretary of state to
refrain from placing on the ballot a proposed initiative regarding a constitutional amendment

16

See Exhibit 6, sample “Real Property Tax Bill” that is mailed to real property taxpayers
yearly by the City & County of Honolulu, Division of Treasury; see also Exhibit 7, “Real
Property Tax Electronic Payment Site” allowing taxpayers to pay online, available at:
https://www.honolulu.gov/cms-bfs-menu/site-bfs-sitearticles/6418-property-tax-payments.html.
17

See six definitions of the noun “surcharge” in WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 2299 (1986), attached as Exhibit 8.
18

See Exhibit 9, Final Summary Report by Office of Elections, p.2, available at:

http://files.hawaii.gov/elections/files/results/2014/general/histatewide.pdf.
19

See Exhibit 10, indicating 147,993 exemptions for fiscal year 2014-2015 for “Homes – Fee –
(Basic), available at: https://www.realpropertyhonolulu.com/media/1084/14_Exhibitpdf.

-8-

 containing the words “Initiative Measure Providing for Adoption of Gross Receipts Act.” The
court held that while “the amendment has for its sole purpose the raising of revenue for the
support of the state government,” it makes “no reference to a tax or to the fact that the proposed
amendment is a revenue measure.” 35 P.2d at 533–34. It “did not bring to his mind any idea or
suggestion whatever that the amendment proposed related to taxation in any form whatever.” Id.
at 534. Another supreme court disapproving a ballot that did not mention a tax stated: “Everyone
knows the general operation of a sales tax. The undisclosed fact is that such a law will be put in
operation.” Walton v. McDonald, 97 S.W. 2d 81, 83 (1936).
Voters are clearly reluctant to approve of new taxes being imposed on them. The
omission of the word “tax” from the ballot question therefore renders it unclear and misleading.
B.

“Investment real property” is misleading because “investment” is not defined.

All types of real property—including personal residences—can be considered as a form
of investment because they can be bought at one price and sold at another. 20 There is nothing in
SB 2922 that would prevent the legislature from taxing all real property—including personal
residences with home exemptions—as a form of investment. Earlier versions of SB 2922
contained definitions that expressly excluded property with a home exemption.21
Surely voters who pay real property taxes on their homes would want clear and sufficient
information to understand such an implication of a Yes vote. The voters should be informed that
the legislature is seeking to grant itself a new, additional power of taxation that it has not had for
40 years, since 1978.

20

See Exhibit 11, available at:
https://loans.usnews.com/how-your-home-stacks-up-as-an-investment.
21

See Exhibit 12, § 1, original version of SB 2922 (Jan. 24, 2018), defining “Residential
investment property” as excluding property “for which the owner does not qualify for a
homeowner’s exemption”; and SB 2922 S.D.1 § 2 containing the same exclusion.

-9-

 Therefore, the phrase “investment real property” as used in the ballot—with neither
definition nor limitation—is unclear and misleading.
C.

It is misleading to tell voters the ballot measure is to “support public
education” when the proposed constitutional amendment does not require
the legislature to increase spending for public education.

The ballot question gives the misleading impression that revenues received from the
legislature’s proposed new real property tax will increase funding for public education when, in
fact, there is nothing in SB 2922 that requires such a result.22 The state operating budget for
education is $1.99 billion,23 nearly identical to the revenues derived from real property taxes for
all four Counties combined in fiscal year 2018-2019.24 So, unless the legislature more than
doubles the current tax burden on real property taxpayers throughout the state, the legislature
could merely substitute the revenues derived from its new real property tax for revenues derived
from other funding sources, with no net increase for public education.
The ballot question’s main selling point is that it will “be used to support public
education.” Voters may well assume this means an increase in funding for public education. This
lulling of the voters is reminiscent of Walton, 97 S.W. 2d at 82 (1936), in which the ballot
indicated its purpose as being “to provide for the assistance of aged and/or blind persons.” The
court noted the “appeal to all humane instincts. Few would object to some provision being made

22

This disconnect has not gone unnoticed. See Exhibit 13, available at:
http://www.staradvertiser.com/2018/09/02/hawaii-news/volcanic-ash/volcanic-ash-be-honestabout-schools-tax-before-it-goes-on-ballot/; Exhibit 14, available at:
https://www.bizjournals.com/pacific/news/2018/08/29/counties-join-honolulu-lawsuit-seekingto-cut.html.
23

Exhibit 15, also available at:
http://www.hawaiipublicschools.org/ConnectWithUs/Organization/Budget/Pages/home.aspx.
24

The total for the four Counties is approximately $2 billion: $1.265 billion for City and County
of Honolulu, $318 million for Maui, $310 million for Hawaiʻi County, and $135 million for
Kauaʻi. Data available at https://www.realpropertyhonolulu.com/rpa-report/#2018.

- 10 -

 for the support of the aged and blind….” Id at 83. But the court disapproved of the wording
because it failed to mention that a tax was at stake. Id.
Supporting public education is likewise an “appeal to all human instincts,” but there is no
requirement that funding for this purpose be increased. The ballot question is therefore unclear
and misleading for this reason as well.
D.

The phrase “as provided by law” misleads voters into thinking that current
law already allows the state legislature to impose a real property tax when in
fact it does not.

Nothing in current Hawaiʻi law provides for the legislature to impose a real property tax
“surcharge” on “investment real property.” In fact, Article VIII, section 3 of the constitution
gives to the Counties the exclusive power to tax real property. The ballot question gives a
misleading impression to the contrary. The reference to “as provided by law” could make voters
think that a Yes vote is a necessary form of housekeeping to bring current law into compliance or
the implementation of a current law that already authorizes the legislature to impose a new tax.
Similarly, in Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972), the supreme court found that
inclusion of the unauthorized prefatory language “As required by the Constitution” was
“inherently misleading.” Id. at 78, 81.
Therefore, the phrase “as required by law” is unclear and misleading.
II.

An Extraordinary Writ Is the Only Way for the Counties to Obtain the
Pre-Election Relief They Are Seeking.
For over a century the Hawaiʻi Supreme Court has authorized pre-election challenges

seeking to enforce the state’s election laws.
[T]the following may be stated as the approved rule: All provisions of the
election law are mandatory if enforcement is sought before election in a
direct proceeding for that purpose[.]
Lane v. Fern, 20 Haw. 290, 302 (1910); see also Helton v. Jacobs, 57 S.W.3d 180, 186 (Ark.

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 2001) (“This court has consistently drawn a clear distinction between causes of action that accrue
pre-election and those that accrue post-election after the voters have spoken.”).
This Court has indicated a strong preference for pre-election challenges when possible.
See State ex rel. Bronster, 84 Hawai‘i, at 185, 932 P.2d at 322. (stating that the “better practice”
is “to expedite legal action prior to the election.”)
For example, this Court affirmed the availability of pre-election relief on September 17,
1992. Exercising original jurisdiction, it enjoined the lieutenant governor in his capacity as chief
election officer from placing two constitutional amendments on the ballot for the 1992 general
election. Blair v. Cayetano, 73 Haw. 536, 538, 551, 836 P.2d 1066, 1068, 1074 (1972).
Other jurisdictions also permit pre-election relief. See, e.g., Let Miami Beach Decide v.
City of Miami Beach, 120 So. 3d 1282, 1284, 1286, 1292, 1293 (Fla. App. 2013) (removing
question relating to city charter provision from Nov. 5, 2013, election on Sept. 20, 2013, because
its “true effect is different from its apparent effect” and it was confusing and violated the
requirement of ballot clarity); State ex rel. Voters First v. Ohio Ballot Bd., 978 N.E.2d 119, 120,
122, 130 (Ohio 2012) (granting pre-election writ of mandamus on September 12, 2012, prior to
the general election on Nov. 6, 2012, general election, because the “factual inaccuracy and the
material omissions deprive voters of the right to know what it is they are being asked to vote
upon, and the factual inaccuracy concerning the funding… is in the nature of a persuasive
argument against the proposed amendment.”); Florida Dept. of State v. Fla. State Conference of
NAACP Branches, 43 So. 3d 662, 664, 669 (Fla. 2010) (striking legislatively proposed
constitutional amendment from Nov. 2010 general election ballot on Aug. 31, 2010, because it
was misleading and the ballot language did not “inform the voter of the true purpose and effect
of the amendment”); City of McAllen v. McAllen Police Officers Union, 221 S.W.3d 885 (Tex.

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 App. 2007) (issuing injunction prohibiting city from using misleading and confusing ballot
language in an upcoming election); Askew v. Firestone, 421 So. 2d 151, 156 (Fla. 1982) (issuing
order on Oct. 21, 1982, striking constitutional amendment from Nov. 1992 general election
ballot because language misleading concerning material changes to an existing constitutional
provision and lacked “a clear and unambiguous explanation of the measure’s chief purpose”).
Less than a month ago, another supreme court considered an expedited election matter
seeking to enjoin a ballot measure. The court issued an order on August 29, 2018, in Molera v.
Reagan, 25 because the 100-word description of a proposition “did not accurately represent the
increased tax burden on the affected classes of taxpayers,” creating “a significant danger of
confusion or unfairness.”
HRAP Rule 21(e) expressly authorizes application for extraordinary writs. The case law
based on Rule 21(e) is sparse and does not address the scope of extraordinary writs. See Office of
Disciplinary Counsel v. Au, Nos. 26517, 28323, 2007 Haw. LEXIS 18, 2007 WL 624157 (Jan.
19, 2007). The meaning of “extraordinary writ” as defined by BLACK’S LAW DICTIONARY 1748
(9th ed. 2009) is “a writ issued by a court exercising unusual or discretionary power.” Another
definition is: “Extraordinary writ is a writ issued by a court exercising unusual or discretionary
power. It can also be a judicial order generally issued by an appellate court to make available the
remedies not regularly within the powers of lower courts. Extraordinary writs are also termed as
prerogative writs.”26
A pre-election challenge to a ballot question would appear to fall within the ambit of

25

See Exhibit 16, available on the Arizona Supreme Court’s official website at:
https://www.azcourts.gov/Portals/21/Elections/CV-18-0218-APEL.pdf?ver=2018-08-30-082417400. The order indicated that a written opinion would follow.
26

See https://definitions.uslegal.com/e/extraordinary-writ/.

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 these definitions of an extraordinary writ. See Gallivan v. Walker, 54 P.3d 1069, 1067–68,1100
(Utah 2002) (granting extraordinary writ on August, 22, 2002, and issuing order on August 26,
2002, prior to the November 5, 2002, general election and stating, “Our cases demonstrate the
practical utility of the flexibility of extraordinary writs in various circumstances,” and “this court
has…considered the exigencies dictated by timing in an election-related case to permit the
determination of a constitutional question in an extraordinary writ proceeding.”); Lopez v. Kase,
975 P.2d 346, 349 (N.M. 1999) (stating that “a post-election petition for an extraordinary writ is
generally less likely to present a compelling need for immediate relief in this Court than a preelection petition). Furthermore, there is a “rule that one cannot pass up a preelection remedy in
favor of a postelection challenge.” McKinney v. Superior Court, 21 Cal. Rptr. 3d 773, 776–77
(App. 2004) (stating that a pre-election writ of mandate is an appropriate remedy).
Granting an extraordinary writ is the only practical way the Counties can obtain preelection relief prior to November 6, 2018.
CONCLUSION
The Counties respectfully request that (1) the petition be granted, (2) the Court set an
expedited schedule for briefing and oral argument, and (3) the Court issue an order granting the
Counties their requested relief prior to the November 6, 2018, general election.
DATED: Honolulu, Hawaiʻi, September 26, 2018.
DONNA Y. L. LEONG
Corporation Counsel
By /s/ Robert M. Kohn
ROBERT M. KOHN
NICOLETTE WINTER
Deputies Corporation Counsel
Attorneys for Petitioner
CITY AND COUNTY OF HONOLULU

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 DATED: Hilo, Hawaiʻi, September 26, 2018.
JOSEPH K. KAMELAMELA
Corporation Counsel
By /s/ Laureen L. Martin
LAUREEN L. MARTIN
Deputies Corporation Counsel
Attorneys for Petitioner
COUNTY OF HAWAIʻI
DATED: Wailuku, Hawaiʻi, September 26, 2018.
PATRICK WONG
Corporation Counsel
By /s/ Brian A. Bilberry
BRIAN A. BILBERRY
Deputy Corporation Counsel
Attorneys for Petitioner
COUNTY OF MAUI
DATED: Lihue, Hawaiʻi, September 26, 2018.
MAUNA KEA TRASK
County Attorney
By /s/ Matthew M. Bracken
MATTHEW M. BRACKEN
First Deputy County Attorney
Attorneys for Petitioner
COUNTY OF KAUAʻI

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 Electronically Filed
Supreme Court
SCPW-18-0000733
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
26-SEP-2018
CITY AND COUNTY OF HONOLULU,
ORIGINAL PROCEEDING10:11 AM
COUNTY OF HAWAIʻI, COUNTY OF
CIVIL NO. 18-1-1326-08 (JPC)
MAUI, COUNTY OF KAUAʻI,
(Declaratory Judgment; Injunctive Relief)
S. C. No. _______________________

Petitioners,
PETITION FOR EXTRAORDINARY WRIT
SEEKING PRE-ELECTION RELIEF

vs.
STATE OF HAWAIʻI; SCOTT NAGO, in his
capacity as Chief Election Officer; RONALD
D. KOUCHI, in his capacity as President of
the Hawaiʻi Senate; SCOTT K. SAIKI, in his
capacity as Speaker of the Hawaiʻi House,
Respondents,.

DECLARATION OF ROBERT M. KOHN
I, ROBERT M. KOHN, hereby declare under penalty of perjury that the foregoing is true
and correct:
1.

I am an attorney licensed to practice law and a member in good standing in all of

the courts of the State of Hawaiʻi.
2.

I am a deputy corporation counsel with the Department of the Corporation

Counsel, and one of the attorneys representing Petitioner City and County of Honolulu.
3.

I have personal knowledge of the matters set forth below.

4.

On August 29, 2018, the Petitioners herein (the four “Counties” of Hawaiʻi), filed

a second amended complaint for declaratory and injunctive relief in City and County of
Honolulu, et al. v. Ige, et al., Civ. No. 18-1-1326-08 JPC. I was one of the attorneys for the City
and County of Honolulu in that case, in which Respondent Scott Nago was a named defendant.
5.

On August 31, 2018, the Counties filed a motion for preliminary injunction

 seeking to invalidate the SB 2922 ballot question prior to the November 6, 2018, general election
because the question was not clear and it was misleading.
6.

The motion was heard on September 7, 2018, with the Honorable Jeffrey P.

Crabtree presiding. Counsel for the Attorney General and all Counties attended the hearing.
7.

The motion was denied in a written order dated September 20, 2018, and the order

was certified for interlocutory appeal by an order dated September 21, 2018.
8.

The Counties intend to file a prompt notice of appeal.

9.

The Counties ask the Court to take judicial notice of the matters in official

websites cited in the writ and its exhibits pursuant to Rule 201(b) of the Hawaiʻi Rules of
Evidence because they are not subject to reasonable dispute because they are “capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.”
10.

Exhibit 1 is a true and correct copy of SB 2922, S.D. 1, H.D. 1 (“SB 2922”),

available on the legislature’s website at:
https://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2922.
11.

Exhibit 2 are true and correct copies of the four ballot specimens that will appear

on the ballot for the four Counties. They were handed to me by a deputy attorney general on
September 10, 2018, in the courtroom of Judge Crabtree.
12.

Exhibit 3 is a true and correct copy of the declaration of Respondent Scott Nago,

Chief Election Officer, dated September 5, 2018, attached to the memorandum in opposition to
the motion for preliminary injunction filed on September 5, 2018.
13.

Exhibit 4 is a true and correct copy of the declaration of Respondent Scott Nago,

Chief Election Officer, dated August 31, attached to the memorandum in opposition to the

-2-

 Counties’ motion to shorten time for the hearing, filed on August 31, 2018.
14.

Exhibit 5 is a true and correct copy of the Findings of Fact, Conclusions of Law,

and Order Denying Plaintiff Counties’ Motion for Preliminary Injunction, filed on September 20,
2018 (certified copy). The circuit court certified the order for interlocutory appeal on September
21, 2018. The Counties intend to file a notice of appeal shortly after the filing of this writ.
14.

Exhibit 6 is a true and correct copy of a sample Real Property Tax Bill that is

mailed to real property taxpayers yearly by the City & County of Honolulu, Division of
Treasury.
15.

Exhibit 7 is a true and correct copy of a Real Property Tax Electronic Payment

site, available at:
https://www.honolulu.gov/cms-bfs-menu/site-bfs-sitearticles/6418-property-tax-payments.html.
16.

Exhibit 8 is the six definitions of the noun “surcharge” in WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 2299 (1986).
17.

Exhibit 9 is a true and correct copy of page 3 of the Final Summary Report by the

Office of Elections, available at:
http://files.hawaii.gov/elections/files/results/2014/general/histatewide.pdf.
18.

Exhibit 10 is a true and correct copy of the data indicating 147,993 exemptions

for fiscal year 2014-2015 for “Homes – Fee –(Basic), available at:
https://www.realpropertyhonolulu.com/media/1084/14_ex.pdf.
19.

Exhibit 11 is a true and correct copy of an article available at:

https://loans.usnews.com/how-your-home-stacks-up-as-an-investment.
20.

Exhibit 12 is a true and correct copy of the two previous versions of SB 2922,

S.D. 1, H.D. 1, including the original version dated Jan. 24, 2018, defining “Residential

-3-

 investment property” as excluding property “for which the owner does not qualify for a
homeowner’s exemption”; and SB 2922 S.D.1, containing the same exclusion. Both previous
versions are available on the leglature’s website at:
https://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2922.
21.

Exhibit 13 is a true and correct copy of an article available at;

http://www.staradvertiser.com/2018/09/02/hawaii-news/volcanic-ash/volcanic-ash-be-honestabout-schools-tax-before-it-goes-on-ballot/.
22.

Exhibit 14 is a true and correct copy of an article available at:

https://www.bizjournals.com/pacific/news/2018/08/29/counties-join-honolulu-lawsuit-seekingto-cut.html.
23.

Exhibit 15 is a true and correct copy of the Department of Education’s website,

available at:
http://www.hawaiipublicschools.org/ConnectWithUs/Organization/Budget/Pages/home.aspx.
24.

Exhibit 16 is a true and correct copy of the order issued in Molera v. Reagan,

available on the Arizona Supreme Court’s official website at:
https://www.azcourts.gov/Portals/21/Elections/CV-18-0218-APEL.pdf?ver=2018-08-30-082417400. The order indicated that a written opinion would follow. Id.
28.

No supplementary voter informational materials will provided to the electorate

before the November 6, 2018, general election. At a status conference on Friday, August 31,
2018, with the Honorable Jeffrey P. Crabtree presiding, attended by the Attorney General and
other deputies from his office for Respondent Scott Nago and counsel (including myself) for the
City and County of Honolulu, as well as Mr. Nago but with no court reporter present, the court
noted a reference to “informational booklets” in Kahalekai v. Doi, 60 Haw. 324, 327–30 (Haw.

-4-

 1979), and asked the Attorney General whether such informational booklets are still distributed,
to which he replied that they are no longer distributed and would not be distributed for the
upcoming election. In this regard, see Exhibit 17 and Exhibit 18, references to “public
education” and “voter pamphlet” in HRS § 11-2(d) and HAR §§ 3-172-1, -10, -11, respectively.
California voter information guides, by contrast, can be hundreds of pages long. See
http://www.latimes.com/politics/la-pol-ca-california-voter-guide-november-ballot-20160909snap-story.html. Exhibit 19 is a California voter information guide ballot question addressing a
constitutional amendment, available at:
https://vig.cdn.sos.ca.gov/2018/general/pdf/complete-vig.pdf. As recently as the 2002 election
cycle, Hawaiʻi voters were provided with an informational pamphlet that included a
“Background” section, an “Explanation of Proposed Amendment” section, and a “Pros and
Cons” section. See Watland v. Lingle, 104 Hawai‘i 128, 131, 85 P.3d 1079, 1082 (2004).
I declare under penalty of law that the foregoing is true and correct.
DATED: Honolulu, Hawaiʻi, September 26, 2018.
/s/ Robert M. Kohn
ROBERT M. KOHN

-5-

 S. C. No. _______________________
IN THE SUPREME COURT OF THE STATE OF HAWAIʻIElectronically Filed
Supreme Court
CITY AND COUNTY OF HONOLULU,
ORIGINAL PROCEEDINGSCPW-18-0000733
COUNTY OF HAWAIʻI, COUNTY OF
CIVIL NO. 18-1-1326-08 (JPC)
26-SEP-2018
MAUI, COUNTY OF KAUAʻI,
(Declaratory Judgment; Injunctive
10:11 Relief)
AM
Petitioners,
PETITION FOR EXTRAORDINARY WRIT
SEEKING PRE-ELECTION RELIEF

vs.
STATE OF HAWAIʻI; SCOTT NAGO, in his
capacity as Chief Election Officer; RONALD
D. KOUCHI, in his capacity as President of
the Hawaiʻi Senate; SCOTT K. SAIKI, in his
capacity as Speaker of the Hawaiʻi House,
Respondents.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the date and by the method of service noted below, a true
and correct copy of the foregoing was served upon the following at their last known address as
show below:
RUSSELL A. SUZUKI, ESQ.
Via JEFS and Hand Delivery
Attorney General
PATRICIA OHARA, ESQ.
VALRI L. KUNIMOTO, ESQ.
Deputy Attorneys General
Department of the Attorney General, State of Hawaiʻi
425 Queen Street
Honolulu, Hawaiʻi 96813
Attorneys for Respondents
STATE OF HAWAIʻI and SCOTT NAGO
RONALD D. KOUCHI
Hawaii State Capitol, Room 409
415 South Beretania Street
Honolulu, Hawaiʻi 96813
RESPONDENT

Via Email and Hand Delivery

 SCOTT K. SAIKI
Hawaii State Capitol, Room 431
415 South Beretania Street
Honolulu, Hawaiʻi 96813

Via Email and Hand Delivery

RESPONDENT
AARON H. SCHULANER, ESQ.
Office of Elections
802 Lehua Avenue
Pearl City, Hawaiʻi 96782

Via Email and
U.S. Mail, Postage prepaid

DATED: Honolulu, Hawaiʻi, September 26, 2018.
DONNA Y. L. LEONG
Corporation Counsel

By: /s/ Robert S. Kohn
ROBERT M. KOHN
NICOLETTE WINTER
Deputies Corporation Counsel
Attorneys for Petitioner
CITY AND COUNTY OF HONOLULU

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