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Baker v. Galuteria

Intermediate Court of Appeals of Hawaii

January 29, 2018

RICHARD W. BAKER, Appellant-Appellant,
v.
BRICKWOOD M. GALUTERIA, ABIGAIL L. GALUTERIA, and GLEN TAKAHASHI, City Clerk, City and County of Honolulu, Appellees-Appellees

         APPEAL FROM THE BOARD OF REGISTRATION, ISLAND OF OAHU (CASE NO. 15-1)

          Lance D. Collins, for Appellant/Appellant.

          William C. McCorriston, Jessica M. Wan, ') (McCorriston Miller Mukai, MacKinnon LLP), for Appellees/Appellees, BRICKWOOD M. GALUTERIA and ABIGAIL L. GALUTERIA.

          Ernest H. Nomura, Deputy Corporation Counsel, City and County of Honolulu, (Leslie P. Chinn, Deputy Corporation Counsel, City and County of Honolulu, with him - on the answering brief), for Appellee/Appellee, GLEN TAKAHASHI, in his official capacity as City Clerk, City and County of Honolulu.

          Ewan C. Rayner, Deputy Solicitor General, (Patricia Ohara and Valri Lei Kunimoto, Deputy Attorneys General, State of Hawai'i, on the brief).

          FUJISE, PRESIDING JUDGE, LEONARD AND REIFURTH, JJ.

          OPINION

          LEONARD, J.

         Appellant-Appellant Richard W. Baker (Baker) appeals from the January 15, 2016 Findings of Fact, Conclusions of Law, Decision-and Order (Order) entered by the Board of Registration for the Island of O'ahu (Board) . In the Order, the Board concluded that the Appellees-Appellees Hawai'i State Senator Brickwood M. Galuteria (Brickwood) and Abigail L. Galuteria (Abigail) (together, the Galuterias) were residents of Royal Capitol Plaza at 876 Curtis Street in Honolulu, Hawai'i (Curtis Street Apartment), with respect to their registration to vote in the November 2014 General Election.

         Baker's primary contention is that the Galuterias resided at 3462 Pakui Street in the Palolo neighborhood of Honolulu (the Palolo Property), rather than at the Curtis Street Apartment. On appeal, Baker requests that this court: (1) declare that the Galuterias were improperly registered to vote in the November 2014 General Election; (2) declare that the Board's proceedings were in excess of its statutory and regulatory authority and that its decision is invalid; and (3) vacate the January 15, 2016 Order and award Baker reasonable attorney's fees and costs. As discussed herein, we conclude that the Board did not err in finding and concluding that the Galuterias' residence was the Curtis Street Apartment, and we affirm.

         I. BACKGROUND

         On Sunday, November 2, 2014, Baker sent a letter[1] by email to the City and County of Honolulu (City) Office of the City Clerk challenging Brickwood's voter registration address at the Curtis Street Apartment.[2] In support of his challenge. Baker asserted that Brickwood claimed a real estate tax exemption for the Palolo Property and for another property located at 45-565 Mahinui Road in Kane'ohe (Kane'ohe Property). Baker requested that the Office of the City Clerk investigate his claim and prohibit Brickwood from voting or, in the alternative, allow Brickwood to cast a provisional ballot.

         On Monday, November 3, 2014, the City Clerk (Clerk)[3]sent a letter to Baker acknowledging receipt of his challenge of Brickwood's voter registration address. As Baker's challenge was emailed and unsigned, the Clerk asked Baker to return a signed copy of the November 2, 2014 letter to confirm that Baker was the person who sent the challenge. The Clerk also notified Baker that it was not able to separate Brickwood1s ballot because Brickwood had voted by "absentee walk"[4] prior to the Clerk's receipt of Baker's challenge. Elections were held on Tuesday, November 4, 2014.

         On November 13, 2014, the Clerk sent a letter to Brickwood notifying him of Baker's challenge. The Clerk requested information and documentation to substantiate the Curtis Street Apartment as Brickwood1s residence, and asked Brickwood to submit any statements that would assist in making the determination that he had the intention to permanently occupy the Curtis Street Apartment and that he had abandoned any former residence.

         On December 6, 2014, Brickwood sent a letter to the Clerk confirming his residence at Curtis Street with Abigail and his mother, Juliette K. Galuteria (Juliette). Brickwood attached a copy of a rental agreement, signed on December 6, 2014, for the Curtis Street Apartment. The term of the rental agreement was for a period of one year, commencing on November 1, 2014 and terminating on October 31, 2015. Brickwood confirmed that he owns properties in Kane'ohe and Palolo and explained that he and Abigail "literally split [their] time between Curtis Street and Palolo" due to Juliette's medical conditions and to assist their daughter and five grandchildren.

         On December 12, 2014, the Clerk sent a letter to Brickwood informing him that a real property tax exemption results in a rebuttable presumption that the Palolo Property is Brickwood's residence. The Clerk asked the Galuterias to submit any information or documentation to rebut the presumption of residency and support their habitation at Curtis Street. The Clerk also requested that the Galuterias respond to a list of six questions related to their habitation at the Curtis Street Apartment.

         On January 5, 2015, 'the Galuterias submitted a response to the Clerk's request, which included, inter alia: pay stubs from Pacific Center for Economic Development and Entertainment Partners, bank statements from First Hawaiian Bank and Aloha Pacific Federal Credit Union, and a State of Hawai'i Department of Taxation Promise Reminder Notice. Additionally, the Galuterias submitted two earlier rental agreements for the Curtis Street Apartment. The term of the first rental agreement was for a period of one year, commencing on June 15, 2011, and terminating on May 31, 2012. The term of the second rental agreement was for a period of one year commencing on November 1, 2013, and terminating October 31, 2014. The first rental agreement listed Juliette and Brickwood as tenants, and the second rental agreement listed Juliette as the tenant. Brickwood asserted that Juliette executed the second rental agreement without his knowledge. The Galuterias also submitted photographs of the Curtis Street Apartment, and Brickwood1s affidavit in which he explained that due to family circumstances and health issues, he spends over 50 percent of his time at Curtis Street and less than 50 percent of his time at the Palolo Property, and that Abigail spends 40 percent of her time at Curtis Street and 60 percent of her time at the Palolo home. Brickwood declined the Clerk's request for the names and contact information of residents or employees that could verify their residence at Curtis Street. Brickwood did not consent to a site inspection of the Curtis Street Apartment.

         On February 2, 2015, the Clerk issued a decision. The decision summarized research findings from government and public sources, as well as documents and sworn statements submitted by the Galuterias. The Clerk stated that the Clerk's Office was "unable to segregate the [Galuterias1] ballots from the General Election results" because the Galuterias voted prior to Baker's challenge, and their ballots were commingled with other in-person absentee voting cast ballots. The Clerk noted that the Galuterias submitted pay stubs, paychecks, copies of statements from financial institutions, and a State of Hawai'i Department of Taxation notice to support their residency at the Curtis Street Apartment. As such, the Clerk determined that the Galuterias had rebutted the presumption of residency at the Palolo Property, and concluded that the Galuterias' residence was the Curtis Street address.

         On or about February 11, 2015, Baker sent a letter to the Board appealing the Clerk's February 2, 2015 decision. In his letter, Baker stated that "Senator Galuteria may have violated tax laws and regulations (city, state, and possibly federal) due to his false claims of property tax exemptions for two properties in Honolulu that are not his principal residence."

         On March 13, 2015, the Board issued a Notice of Prehearing Conference (Notice). The Notice scheduled the prehearing conference for March 24, 2015. The Notice provided that the appeal was brought pursuant to Hawaii Revised Statutes (HRS) § 11-26 (2009), and would be conducted under the procedures of Hawai'i Administrative Rules (HAR) § 3-172-43 (2010).

         On April 9, 2015, the Board issued a Prehearing Order; Notice of Disclosures of Potential Conflicts and Deadline to File Objections. Due to Baker's failure to file requested documents with the Office of Elections, the Board concluded that it "lack[ed] jurisdiction over whether Senator Galuteria is qualified to serve in the State Senate." The Board reiterated that it set a motions deadline, and a motions hearing date at the prehearing conference.

         On or about April 14, 2015, the Galuterias filed a motion to dismiss Baker's appeal of the Clerk's February 5, 2015 decision (Motion to Dismiss). The Galuterias argued that they were entitled to a dismissal of the appeal because they presented substantial evidence of their residency at the Curtis Street Apartment, and Baker failed to present any evidence to support his voter registration challenge. In a May 5, 2015 response. Baker contended that the evidence submitted by the Galuterias "fails to rebut the presumption of their residency at Pakui Street and to substantiate their residency at Curtis Street." The Galuterias filed a reply memorandum on May 12, 2015.

         The Board held a hearing on the Motion to Dismiss on May 26, 2015. The Board stated that it was treating the Motion to Dismiss "as the equivalent of a motion for summary judgment[.]" The Board also stated that Baker "has under the law the burden of producing evidence and the burden of proof as to the ultimate issues in his challenge of the residency of Senator Galuteria and Mrs. Galuteria." After hearing the parties' arguments, the Board requested that the City provide a response to the following three questions: (1) "explain how/why segregation of the Galuterias1 cast absentee walk-in ballots was not possible;" (2) "why the Acting City Clerk did not discuss, in his February 2, 2015 ruling, the significance and/or impact of the Galuterias' Bishop Street address prior to moving to the Curtis Street address;" and (3) "why the Acting City Clerk proceeded to decide the issues presented in the voter registration residency challenge if the inability to segregate the Galuterias1 cast ballots 'mooted' the challenge." The Board requested that the Galuterias and Baker submit their response to the City's statement by June 16, 2015. The Board permitted the City to reply to any responses by July 2, 2015.

         On June 8, 2015, the City filed a statement regarding issues raised at the hearing on the Motion to Dismiss (Statement). The City attached the Clerk's declaration to its Statement. The Clerk declared that the Galuterias voted in the absentee walk-in polling location at Honolulu Hale on October 30, 2014. The Clerk explained that after a person completes his or her ballot, the ballot is placed in a sealed box containing "every other ballot deposited therein." The voter retains a "ballot stub." The Clerk declared that "[o]nee a ballot stub is detached and the deposited ballot is placed into the sealed ballot box, the deposited ballot has no identifiable tracing marks, numbers, alphabets, codes, etc. to link the deposited ballot to a particular voter." The Clerk explained that the "bar markings/code, numbers along the side of the ballot do not identify the persons casting the ballot. The markings are computer readable information regarding polling place, precinct number, etc. for purposes of ballot tabulation." The City asserted that the Clerk does not have the "authority to unilaterally order the unsealing of the ballot box in order to segregate a ballot or ballots . . . without the concurrence of the State of Hawaii, Office of Elections." Additionally, the City asserted that the Galuterias1 Bishop Street address was "irrelevant to the disposition of the voter registration residency issue that was presented to the City Clerk based on what Mr. Baker asserted in his challenge (the Pakui Street real property tax exemption)."

         On June 16, 2015, Baker filed a Second Response to Motion to Dismiss (Second Response). Baker argued that the Galuterias were not permitted to file a Motion to Dismiss under the HAR, and that the Motion to Dismiss "does not meet the Court Rules1 standard." Baker also argued that the "[i]nvocation of the mootness doctrine is not permitted by statute or rule." Additionally, Baker contended that the "Clerk's failure to segregate the Galuterias' ballots prior to counting, for which there was an available procedure, improperly undercut the statutory framework for handling voter registration challenges."

         On June 23, 2015, the Galuterias filed a motion to strike Baker's Second Response (Motion to Strike) pursuant to HAR § 3-172-43(d). The Galuterias contended that Baker's Second Response was improper and untimely because it raised arguments that should have been brought by May 5, 2015, i.e., the Board's deadline to respond to any dispositive motions. Baker filed a response to the Motion to Strike on June 25, 2015. The Galuterias filed a reply memorandum in support of the Motion to Strike on June 26, 2015.

         On October 16, 2015, the Board filed an order granting in part and denying in part the Motion to Strike, and denying the Motion to Dismiss. The Board granted the Galuterias' Motion to Strike to the extent that it "opposes the Galuterias1 motion to dismiss as the Board previously set the briefing schedule and arguments were heard on the motion to dismiss." The Board denied the Galuterias Motion to Strike with regard to "those parts of Baker's second response that respond to the City Clerk's positions on the questions posed by the Board, i.e., regarding mootness and the segregation of ballots." With regard to the Motion to Dismiss, the Board determined that "there are material issues of fact present in the record that preclude dismissing Baker's appeal[.]"

         The Board held a second prehearing conference on November 9, 2015, and issued a Second Prehearing Order on November 10, 2015. The Board requested that the parties submit their exhibit lists, witnesses list, and prehearing memorandum by November 23, 2015. The Board set a November 25, 2015 deadline for any responses to the prehearing memoranda.

         On November 30, 2015, and December 5, 2015, an evidentiary hearing was held before the Board (Hearing). The Board accepted the parties' exhibits "in terms of authenticity, but not as to relevance and weight." Louise Black (Black), Eva Gallegos (Gallegos), Matthew Johnson (Johnson), Brickwood, and the Clerk testified at the Hearing.

         Black was the first witness to be called by Baker to testify. Black testified that she has lived at Royal Capitol Plaza for eighteen years and that she has seen Brickwood at Royal Capitol Plaza. Black related that she was aware that Brickwood1s mother lived at Royal Capitol Plaza. Black testified that she has never visited the Galuterias' apartment at the Royal Capitol Plaza. Black stated that she had no personal knowledge as to whether Brickwood resides in Royal Capitol Plaza. Black also testified that she knew Baker because he was the campaign manager for Chris Lethem (Lethem), who had been running against Brickwood for State Senate in 2014, and that she supported Lethem.

         Gallegos testified that she has lived at Royal Capitol Plaza for nine years. Gallegos testified that she has never seen Abigail at Royal Capitol Plaza. Gallegos related that her interactions with Juliette were "casual." Gallegos stated that she has seen Brickwood in the elevator at Royal Capitol Plaza. Gallegos testified that she has never visited the Galuterias' apartment in Royal Capitol Plaza. Gallegos also testified that she was a Lethem supporter.

         Johnson testified that he has lived at Royal Capitol Plaza for eight years. Johnson related that he had no way of saying whether or not the Galuterias lived at Royal Capitol Plaza, but he had never seen them there. On cross-examination, Johnson admitted that he did not know what Abigail or Juliette looked like.

         Brickwood testified at the Hearing. Brickwood explained that Abigail was not present at the Hearing because she suffers from a "high degree of chronic obstructive pulmonary disease." Brickwood related that he and Abigail had established the Palolo Property as their voting residence in 2005. As to his claimed property tax exemption for the Palolo Property, Brickwood testified that his failure to change his address with the real property assessment division was a mistake.

         Brickwood testified that he and Abigail later resided at the Executive Centre at 1088 Bishop Street from 2007 to 2011. Brickwood stated that he and Abigail also maintained one of four units at the Palolo Property in 2007. Brickwood explained that there were four families, including his daughter, her husband, and their five children, living at the Palolo Property in 2007. When asked "[a]fter you established your residence at Executive Centre, how much time, if any, did you maintain at Pakui Street, " Brickwood responded, "our grandchildren are there, so we'd be there as often as we possibly could. So you know, a couple of days a week, three days a week."

         Brickwood related that he has resided at the Curtis Street Apartment since 2011 with Abigail and Juliette. Brickwood testified that he moved to the Curtis Street Apartment due to changes made to district boundaries for the 2012 election. When asked by Baker to identify his bed and Juliette's bed on a diagram of the Curtis Street Apartment, Brickwood indicated that he and Abigail slept on a pull-out sofa bed in the living room, and that Juliette slept in the bedroom. Brickwood said that he shares a closet with Abigail and Juliette. Brickwood also testified that he, Abigail, and Juliette planned to relocate to the Moana Pacific because "[Abigail's] pulmonary disease requires central air-conditioning. . . . [and also to] expand the living conditions and enter into a three-bedroom[.]" When asked by the Board "once you move [to Moana Pacific], you're not necessarily going to feel a need to keep a presence in Palolo at all[, ]" Brickwood replied, "[j]ust as a landlord. Landlord presence."

         The Clerk also testified at the Hearing. The Clerk explained that, upon receipt of a challenge, the City notifies the challenged voter and provides them with an opportunity to respond. The City conducts 'its own investigation and eventually the Clerk makes a ruling on the voter registration challenge. As to Baker's challenge, the Clerk testified that the Galuterias were registered to vote at the Palolo address, then a Bishop Street address, and then at the Curtis Street address. The Clerk also testified that there was no challenge involving the Galuterias1 Bishop Street voter registration address. The Clerk stated that the Galuterias had claimed a homeowner real property tax exemption for the Palolo Property, which created a rebuttable presumption of residency there. The Clerk testified that the Galuterias submitted rental agreements, bank statements, pay checks, and sworn statements to establish their residency at Curtis Street. Upon review of the documents and statements, the Clerk was satisfied that the Galuterias had rebutted the presumption of residency in Palolo.

         On January 15, 2016, the Board issued its Order. The Board concluded that Baker had not met his burden of proof that the Galuterias did not reside at the Curtis Street Apartment for voting purposes. The Board also concluded that the Galuterias had rebutted the presumption that their actual residence was the Palolo address, and that for the 2014 elections the Galuterias were residents of the Curtis Street Apartment. The Board made several Findings of Fact (FOFs) and Conclusions of Law (COLs) including, inter alia, the following FOFs:

2. In 2005, [Abigail] inherited property at 3462 Pakui Street, in Palolo Valley, in the City and County of Honolulu (the "Palolo property"). Currently, Brickwood and [Abigail] jointly own that property.
3. There are four residential units on the Palolo property. From 2005 until mid-2014, the Galuterias' daughter resided in one of those residential units with her husband and their five children. In mid-2014, the daughter experienced a "tumultuous separation" from her husband, who left, and she and the children remained at Palolo.
4. The Galuterias have retained one unit on the Palolo property so that they may retain a "presence" on it.
5. When the Galuterias initially acquired the Palolo property, they applied for and received from the Real Property Assessment Division of the City and County of Honolulu a partial "homeowner" exemption from their real property taxes on this property as owner-occupants. See, e.g., annual assessment notices for Tax Years July 1, 2011 through June 30, 2016. Appellant's Hearing Exhibits 6-10.
6. In 2007, the Galuterias began occupying Suite 2812 at the Executive Centre, at 1088 Bishop Street in downtown Honolulu as their new residence. Brickwood and [Abigail] both executed voter registration applications dated August 30, 2007, showing this address as their residence.
10. In early 2011, the Galuterias ascertained that redistricting would change the boundaries of District 12, and that Executive Centre would no longer be part of that district.
11. Accordingly, to ensure that Brickwood could continue to represent District 12 in the State Senate, the Galuterias decided to relocate to the Kaka'ako area. At the same time, they agreed with Brickwood's mother, Juliette, that she would relocate from Kane'ohe to the same residential unit as the Galuterias, because Juliette was ...

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