New HAWSCT Brief In Election Case: Voter Registration Appeal Is Timely Brought When Mailed

by Robert Thomas, InverseCondemnation, November 18, 2016

Remember that decision by the Hawaii Intermediate Court of Appeals that we posted a few months ago, after the Hawaii Supreme Court granted discretionary review? The case involved a question of how appeals are brought and filed in cases challenging a voter's registration. In Hyland v. Gonzales, the ICA held that an appellant who was challenging another voter's registration did not timely "file" his appeal, because he mailed it after the ten day statutory limitations period, and did not ensure it was delivered in that window.

When we posted that case here, we didn't have a dog in the hunt. But later, we were asked by the Hawaii Pro Bono Appellate Project to represent the losing appellant, now that the Supreme Court had agreed to hear the case. We signed on and asked the court for supplemental briefing and oral argument. The court agreed, and today, we filed our Supplemental Brief, which argues:

Petitioner, a resident of the island of Hawaii, timely brought his appeal to the Board of Registration by mailing it on Tuesday, October 14, 2014. This brief supplements Petitioner’s Application for Writ of Certiorari with three arguments:

1. Personal service, or registered mail. The statute required the Clerk to serve his decision on Petitioner personally or by registered mail. Haw. Rev. Stat. § 11-26(b) (“Service of the decision shall be made personally or by registered mail[.]”). The Clerk mailed his decision to Petitioner on October 2, 2014, but did not do so by registered mail. Instead, he chose to send it “by the standard United States Postal Service.” ICA Op. at 2 n.2. There is nothing presently in the record to show when Petitioner was personally served. Before dismissing Petitioner’s appeal for missing the statute’s ten day deadline, the Board and the ICA should have required the Clerk to satisfy his burden to introduce evidence of when the ten day period began (the day he “serv[ed] . . . personally” Petitioner with his decision). In the absence of such evidence, the Board and the ICA could not have concluded Petitioner’s appeal was untimely brought or filed.
2. Mailed = brought. Even if the Clerk opened the window by serving his decision on October 2, 2014, Petitioner timely brought his appeal because he mailed it to the Office of Elections on Oahu on Tuesday, October 14, 2014, twelve days later.[1] Section 11-26(b), when read in context of the entire statutory scheme of voter registration demonstrates that an appeal is “brought” and the case perfected, when the appellant mails the notice, even if it tales additional days for delivery. Emphasizing that point, the Office of Elections advised Petitioner that his appeal should be mailed to its Oahu address, and did not inform him he must ensure deliveryto the Board within the appeal window. If the appeal window began when the Clerk mailed the decision, and not when received by Petitioner it should likewise have ended on the day Petitioner mailed his appeal, not when the Board received it.
3. Equal protection and due process.Finally, if the statute is read as requiring delivery within ten days, it could not be applied to Petitioner because doing so would trigger two constitutional problems: (a) there is no rational basis for Oahu challengers to have the full ten days, but their neighbor island counterparts who rely on the mail less time; and (b) the Clerk failed to inform Petitioner that mailing within the ten day limitations period would not perfect his appeal.

The ICA, however—interpreting the term “filed” in the Office of Elections’ regulations (and not the term “brought” in the statute itself)—concluded that mailing within the statute’s time limit wasn’t sufficient, because timeliness is measured from the date of delivery to the Board.[2] The ICA held that Monday, October 13, 2014 was the deadline for receipt. But that rationale deprived Petitioner of the full statutory appeal period, because Monday was Columbus Day and the postal service did not deliver mail. This means the ICA’s actual deadline for receipt was Friday, October 10, 2014. To ensure the Board received his appeal by that date, Petitioner needed to have mailed it by Wednesday, October 8, 2014.

The ICA’s opinion and judgment should be vacated, and this case remanded to the Board for a decision on the merits of Petitioner’s appeal.

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[1] Section 11-26(b) required that an appeal be “brought” within ten days of service, and section 1-29 added two extra days because the tenth day was a Sunday. The following day was Columbus Day, a holiday when post offices were closed and there was no mail delivery.

[2] ICA Op. at 5-6 (“Thus, in order for Appellants’ appeal to be timely, Appellants were required to deliver their Appeal Letter to the Board within ten days of when the County Clerk properly mailed his adverse decision to them.”) (emphasis added) (footnote omitted).

The court permitted all parties to file supplemental briefs, and if any others do so, we'll post them here. Oral arguments in the case are set for January 19, 2017. 

PDF: Petitioner's Supplemental Brief, Hyland v. Gonzales, No. SCWC-15-0000053 (Haw. Nov. 18, 2016) 

HTH: Hawaii Supreme Court to hear Gonzales residency case