RICHARD W. BAKER, Appellant-Appellant,
BRICKWOOD M. GALUTERIA, ABIGAIL L. GALUTERIA, and GLEN TAKAHASHI, City Clerk, City and County of Honolulu, Appellees-Appellees
FROM THE BOARD OF REGISTRATION, ISLAND OF OAHU (CASE NO.
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.
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.
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.
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.
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.
Sunday, November 2, 2014, Baker sent a letter 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. 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.
Monday, November 3, 2014, the City Clerk
(Clerk) 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 Brickwood's ballot
because Brickwood had voted by "absentee
walk" prior to the Clerk's receipt of
Baker's challenge. Elections were held on Tuesday,
November 4, 2 014.
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 Brickwood's 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.
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.
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.
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 Brickwood's 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
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 [Galuterias']
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.
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
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) .
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.
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.
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
Galuterias' 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 Galuterias'
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.
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]nce 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
Galuterias' 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
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
Rules' 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."
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.
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
Galuterias' 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[.]"
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.
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
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
Brickwood's 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.
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.
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
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
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."
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."
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 Galuterias' 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.
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
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
4. The Galuterias have retained one unit on the Palolo
property so that they may retain a "presence" on
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
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
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 ...