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A Honolulu businessman late Friday renewed efforts to impeach embattled Honolulu Prosecuting Attorney Keith Kaneshiro by filing a petition in Hawaii state court with more than 557 hand-written and electronic signatures from residents calling for Kaneshiro’s removal.
It remains to be seen whether the new effort will have an outcome different from a previous initiative petition. The outcome might come down to whether electronic signatures on the petition are deemed good enough to merit launching an impeachment proceeding.
Honolulu’s top prosecutor has taken a voluntary leave of absence with pay after being named the target of a federal corruption investigation that has so far led to convictions of one of Kaneshiro’s top former deputies and the former chief of police.
Former Honolulu Police Chief Louis Kealoha and his wife Katherine, a former deputy prosecutor, were convicted of numerous felonies stemming from a conspiracy they led designed to frame Katherine’s uncle, Gerard Puana, for the theft of the couple’s mailbox.
The Kealohas have pleaded guilty to additional counts of bank fraud and identity theft, and Katherine has also pleaded guilty to drug trafficking charges.
As part of the plea deal, the couple are expected to cooperate with federal investigators working on the probe, which has expanded to include Kaneshiro and Honolulu Corporation Counsel Donna Leong. Leong also has been on paid leave for months while the investigation continues.
Yoshimura himself was once charged with operating gaming machines as illegal gambling devices, but the charges were ultimately dismissed.
Yoshimura blames Kaneshiro not only for what Yoshimura said was his wrongful prosecution, but also for allowing corruption to occur in the prosecutor’s office and the police department on Kaneshiro’s watch.
“I’m one of the victims of his wrongdoing,” said Yoshimura, who filed his petition in Hawaii Circuit Court on Friday. “The impact that I’ve seen with Kaneshiro as the gatekeeper — the corruption has just flourished with him as the gatekeeper.”
Yoshimura’s earlier attempt to impeach Kaneshiro failed when Hawaii Circuit Court Judge Jeffrey Crabtree dismissed the case on procedural grounds.
In that case, Yoshimura had submitted 864 electronic signatures gathered on Change.org, which appeared to be far more that the 500 signatures of registered voters needed to commence an impeachment proceeding in court.
But Honolulu Corporation Counsel attorneys argued City Clerk Glen Takahashi, who oversees elections, didn’t have to accept the Change.org signatures, and Crabtree agreed.
Yoshimura decided to gather new signatures and resubmit the petition instead of going through a time-consuming appeal of Crabtree’s decision, said his attorney, Keith Kiuchi.
Now, Yoshimura said, he has more than 500 signatures, some hand-written and some gathered via DocuSign, an electronic signature solution commonly used for business transactions, Yoshimura said.
Yoshimura also plans to petition the Hawaii Supreme Court for an order seeking to overturn Crabtree’s decision, Kiuchi said.
A central issue is whether the City Clerk who would oversee the impeachment process can reject the electronic signatures when the city hasn’t adopted formal rules concerning such signatures. The Hawaii Legislature authorized county governments to create policies on e-signatures nearly two decades ago when it passed the state’s Uniform Electronic Transactions Act, Hawaii Revised Statutes Chapter 489E, in 2000.
The law says generally that “a record or signature shall not be denied legal effect or enforceability solely because it is in electronic form.” It further says that if “a law requires a signature, an electronic signature satisfies the law.”
The statute goes on to say that state and county agencies “shall determine whether, and the extent to which, (they) will send and accept electronic records and electronic signatures.” The law specifies that agencies don’t have to accept e-signatures.
Generally, when adopting policies that apply to the public, agencies must follow Charter 91 of Hawaii’s Revised Statutes, known as the Hawaii Administrative Procedure Act. It spells out three main ways for agencies to establish policies that affect the public: through formal rule making, contested cases or declaratory rulings.
A central question is whether the city clerk had the discretion to deny the signatures without going through one of these formal processes.
In this case, formal rule making wasn’t required, said Moana Yost, a deputy corporation counsel who worked on the matter. If the clerk made a determination to accept electronic signatures, that might trigger the need for rule making, Yost said. But that didn’t happen here.
Yost noted that Crabtree had agreed with the city’s analysis, ruling among other things that the city didn’t need to formally enact any measures in order to reject the petition’s electronic signatures.
Although there’s no written policy to let the public know about the signature requirements for impeachment petitions, Yost said the public could contact the City Clerk’s office about the requirements.
Kiuchi said the electronic document statute allows the city to reject electronic signatures but only if the city adopts formal rules letting the public know about the policy.
He said the city hasn’t adopted such rules. Rather the City Clerk simply refused to accept the signatures without offering the public any guidance or publishing a policy concerning which signatures would be acceptable.
Whether an appellate court will accept that argument remains to be seen.
In the meantime, Yoshimura has submitted the new petition with more signatures.
In addition, Kiuchi said he plans to request the Supreme Court to overturn Crabtree’s ruling in order to meet a Dec. 31 deadline. If Kaneshiro is removed before then, he said, the public will have the chance to vote for a replacement, under the Honolulu City Charter.
Otherwise, he said Mayor Kirk Caldwell will get to choose the replacement if Kaneshiro is removed.
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