NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 20-AUG-2024 08:15 AM Dkt. 52 SO
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
NANCY E. MCGEE, Plaintiff/Appellant-Appellant, v. CAMPAIGN SPENDING COMMISSION, STATE OF HAWAI#I, CALVIN K.Y. SAY, AND FRIENDS OF CALVIN SAY, an unincorporated candidate committee, Defendants/Appellees-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CC151000491)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)
Plaintiff-Appellant Nancy E. McGee (McGee) appeals from
the August 17, 2020 Judgment (Judgment) entered against her and
in favor of Defendants-Appellees Calvin K.Y. Say and Friends of
Calvin Say (collectively, Say) and Defendant-Appellee Campaign
Spending Commission, State of Hawai#i (Commission) in the Circuit
Court of the First Circuit (Circuit Court).1 McGee also
challenges the Circuit Court's (1) July 17, 2019 Order Granting
in Part and Denying in Part [Say's] Motion to Dismiss or, in the
1 The Honorable James H. Ashford presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Alternative, for Summary Judgment, Filed May 20, 2019, and
[Commission's] Substantive Joinder in [Say's] Motion to Dismiss
or, in the Alternative, for Summary Judgment, Filed May 24, 2019
(Order Dismissing Count IV); and (2) August 17, 2020 Order
Denying [McGee's] Renewed Motion for Summary Judgment and
Granting [Commission's] Second Motion for Summary Judgment as to
Count V (Order Dismissing Count V).
McGee raises three points of error on appeal,
contending that the Circuit Court erred in: (1) granting summary judgment on Count V of McGee's Complaint on the grounds that the
Commission's procedure does not constitute a rule as defined by
Hawaii Revised Statutes (HRS) § 91-1 (2012) because it is an
internal management procedure; (2) granting summary judgment on
Count V on the grounds that the Commission's procedures for
delegating authority do not affect private rights of or
procedures available to the public; and (3) granting summary
judgment on Count IV of McGee's Complaint on the basis that the
Commission's statement, which was the subject of Count IV, was
adjudicatory in nature and not a rule subject to challenge under
HRS § 91-7 (2012). Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve McGee's points of error as follows:
(1 & 2) The key allegation in Count V is that "[t]he
Commission has a custom or practice of allowing its staff to make
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
determinations which make statements of general or particular
applicability and future effect that implement, interpret, or
prescribe law or policy." The Circuit Court concluded that the
Commission's practice and procedure (Procedure) was an internal
delegation of authority from the Commission to its staff members
to make legal determinations, but that the Procedure did not
impact the private rights of or procedures available to the
public because it was not the policy or procedure of the
Commission for staff to dispose of complaints without Commission action. Accordingly, the Circuit Court concluded that the
Procedure was not a rule under HRS § 91-1.
Under HRS § 91-1(4): (4) "Rule" means each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term does not include regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public, nor does the term include declaratory rulings issued pursuant to section 91-8, nor intra-agency memoranda.
(Emphasis added).
McGee argues that the Commission's unwritten rule delegates authority to Commission staff to implement, interpret,
or prescribe policy by allowing staff to respond to inquiries
from the public without actual action by the Commission; and
thus, the internal management exception does not apply.
The internal management exception applies where
internal agency regulations do not affect the private rights of
the public or any procedures available to the public; this
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
exception occurs when, for example, the private rights of the
public or any procedures available to the public are indirectly
affected by internal agency regulations. See Kawashima v. State,
140 Hawai#i 139, 152-53, 398 P.3d 728, 741-42 (2017).
The internal management exception does not apply where
the private rights of the public or any procedures available to
the public are directly affected. See id. at 153, 398 P.3d. at
742; see also Green Party of Haw. v. Nago, 138 Hawai#i 228, 243,
378 P.3d 944, 959 (2016); Aguiar v. Haw. Hous. Auth., 55 Haw. 478, 488-89, 522 P.2d 1255, 1262-63 (1974).
McGee argues in part that the private rights and
procedures available to the public are directly affected by the
Commission's delegation of authority to the Commission staff
because "the manner in which staff make determinations directly
affects the public's right to know about campaign finances and in
a slightly more narrow way, candidate's committees' interests."
McGee's arguments are without merit. Only the Commission, not
Commission staff, may make binding Commission determinations upon
a complaint filed with the Commission. See HRS §§ 11-401 to 11-
411 (Supp. 2021). With respect to campaign finances, any member
of the public may view the source of a candidate's financial
support by viewing the candidate's contribution report on the
Commission's website. See HRS § 11-331 (Supp. 2023).
McGee points to 68 pieces of email correspondence sent
by Commission staff. However, a review of the emails does not
support McGee's arguments. In each instance, Commission staff
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
responds to public inquiries, but does not make binding
determinations (for example, numerous emails state qualifiers
such as "Use of E-Mail Limited: E-mail messages to Commission
staff shall not be considered or construed to be a request for an
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 20-AUG-2024 08:15 AM Dkt. 52 SO
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
NANCY E. MCGEE, Plaintiff/Appellant-Appellant, v. CAMPAIGN SPENDING COMMISSION, STATE OF HAWAI#I, CALVIN K.Y. SAY, AND FRIENDS OF CALVIN SAY, an unincorporated candidate committee, Defendants/Appellees-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CC151000491)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)
Plaintiff-Appellant Nancy E. McGee (McGee) appeals from
the August 17, 2020 Judgment (Judgment) entered against her and
in favor of Defendants-Appellees Calvin K.Y. Say and Friends of
Calvin Say (collectively, Say) and Defendant-Appellee Campaign
Spending Commission, State of Hawai#i (Commission) in the Circuit
Court of the First Circuit (Circuit Court).1 McGee also
challenges the Circuit Court's (1) July 17, 2019 Order Granting
in Part and Denying in Part [Say's] Motion to Dismiss or, in the
1 The Honorable James H. Ashford presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Alternative, for Summary Judgment, Filed May 20, 2019, and
[Commission's] Substantive Joinder in [Say's] Motion to Dismiss
or, in the Alternative, for Summary Judgment, Filed May 24, 2019
(Order Dismissing Count IV); and (2) August 17, 2020 Order
Denying [McGee's] Renewed Motion for Summary Judgment and
Granting [Commission's] Second Motion for Summary Judgment as to
Count V (Order Dismissing Count V).
McGee raises three points of error on appeal,
contending that the Circuit Court erred in: (1) granting summary judgment on Count V of McGee's Complaint on the grounds that the
Commission's procedure does not constitute a rule as defined by
Hawaii Revised Statutes (HRS) § 91-1 (2012) because it is an
internal management procedure; (2) granting summary judgment on
Count V on the grounds that the Commission's procedures for
delegating authority do not affect private rights of or
procedures available to the public; and (3) granting summary
judgment on Count IV of McGee's Complaint on the basis that the
Commission's statement, which was the subject of Count IV, was
adjudicatory in nature and not a rule subject to challenge under
HRS § 91-7 (2012). Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve McGee's points of error as follows:
(1 & 2) The key allegation in Count V is that "[t]he
Commission has a custom or practice of allowing its staff to make
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
determinations which make statements of general or particular
applicability and future effect that implement, interpret, or
prescribe law or policy." The Circuit Court concluded that the
Commission's practice and procedure (Procedure) was an internal
delegation of authority from the Commission to its staff members
to make legal determinations, but that the Procedure did not
impact the private rights of or procedures available to the
public because it was not the policy or procedure of the
Commission for staff to dispose of complaints without Commission action. Accordingly, the Circuit Court concluded that the
Procedure was not a rule under HRS § 91-1.
Under HRS § 91-1(4): (4) "Rule" means each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term does not include regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public, nor does the term include declaratory rulings issued pursuant to section 91-8, nor intra-agency memoranda.
(Emphasis added).
McGee argues that the Commission's unwritten rule delegates authority to Commission staff to implement, interpret,
or prescribe policy by allowing staff to respond to inquiries
from the public without actual action by the Commission; and
thus, the internal management exception does not apply.
The internal management exception applies where
internal agency regulations do not affect the private rights of
the public or any procedures available to the public; this
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
exception occurs when, for example, the private rights of the
public or any procedures available to the public are indirectly
affected by internal agency regulations. See Kawashima v. State,
140 Hawai#i 139, 152-53, 398 P.3d 728, 741-42 (2017).
The internal management exception does not apply where
the private rights of the public or any procedures available to
the public are directly affected. See id. at 153, 398 P.3d. at
742; see also Green Party of Haw. v. Nago, 138 Hawai#i 228, 243,
378 P.3d 944, 959 (2016); Aguiar v. Haw. Hous. Auth., 55 Haw. 478, 488-89, 522 P.2d 1255, 1262-63 (1974).
McGee argues in part that the private rights and
procedures available to the public are directly affected by the
Commission's delegation of authority to the Commission staff
because "the manner in which staff make determinations directly
affects the public's right to know about campaign finances and in
a slightly more narrow way, candidate's committees' interests."
McGee's arguments are without merit. Only the Commission, not
Commission staff, may make binding Commission determinations upon
a complaint filed with the Commission. See HRS §§ 11-401 to 11-
411 (Supp. 2021). With respect to campaign finances, any member
of the public may view the source of a candidate's financial
support by viewing the candidate's contribution report on the
Commission's website. See HRS § 11-331 (Supp. 2023).
McGee points to 68 pieces of email correspondence sent
by Commission staff. However, a review of the emails does not
support McGee's arguments. In each instance, Commission staff
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
responds to public inquiries, but does not make binding
determinations (for example, numerous emails state qualifiers
such as "Use of E-Mail Limited: E-mail messages to Commission
staff shall not be considered or construed to be a request for an
advisory opinion to the Commission under HRS § 11-315, nor shall
e-mail messages from Commission staff be considered or construed
to be an advisory opinion rendered by the Commission."). In none
of the emails provided did Commission staff dispose of a
complaint, make a binding determination, or otherwise affect the rights and procedures available to the public. Commission staff,
in all instances, provided responses to public inquiries, with
appropriate qualifiers, putting the public on notice that no
official Commission action was being taken.
Finally, McGee argues that the Circuit Court improperly
relied on certain Commission declarations. This argument is
without merit. The challenged declarations simply averred, in
sum, that it is not Commission policy for staff to dispose of
complaints without Commission action.
(3) McGee argues that the Circuit Court erred in
entering summary judgment on the unlawful rule-making claim in
Count IV because the June 18, 2014 letter (June 2014 Letter) from
Commission staff to Say constituted unlawful rule-making. McGee
argues that the June 2014 Letter guided future conduct, as it did
guide the future conduct of Say, and thus the June 2014 Letter
was a rule within the meaning of HRS § 91-1.
First, the June 2014 Letter was not a binding
determination by the Commission; McGee's complaint was later
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
heard by the Commission despite the June 2014 Letter. Moreover,
it was adjudicatory in nature, inasmuch as it addressed whether
particular expenditures were ordinary and necessary expenses in
connection with a particular candidate's duties as an office
holder. Accordingly, we conclude that the Circuit Court did not
err in concluding that the subject of Count IV was not a rule
subject to challenge under HRS § 91-7.
For these reasons, the Circuit Court's August 17, 2020
Judgment is affirmed. DATED: Honolulu, Hawai#i, August 20, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Lance D. Collins, (Law Office of Lance D. Collins), /s/ Keith K. Hiraoka and Associate Judge Bianca Isaki, (Law Office of Bianca Isaki), /s/ Sonja M.P. McCullen for Plaintiff/Appellant- Associate Judge Appellant.
Bert T. Kobayashi, Jr., Maria Y. Wang, (Kobayashi Sugita & Goda), for Defendants/Appellees- Appellees CALVIN K.Y. SAY and FRIENDS OF CALVIN SAY, an unincorporated candidate committee.
Patricia Ohara, Candace J. Park, Deputy Attorneys General, for Defendant/Appellee-Appellee CAMPAIGN SPENDING COMMISSION, STATE OF HAWAI#I.