Tracy Yoshimura, a Honolulu businessman who tried to impeach Honolulu Prosecutor Keith Kaneshiro, has taken his case of electronic signatures to the state Supreme Court.

Yoshimura has twice collected more than 500 signatures online to file impeachment charges against Kaneshiro. The 1st Circuit Court has previously sided with the City and County of Honolulu, ruling that the city didn’t need to accept the signatures or make rules explaining why they should be rejected.

On Friday, the high court heard arguments from Keith Kiuchi, Yoshimura’s attorney, and Bill McCorriston, Kaneshiro’s lawyer, before taking the matter under advisement, which means they’ll mull over the case before ruling.

The court’s ruling, no matter what it says or when it comes, is not likely to have any effect on who becomes the next Honolulu prosecutor. Voters will decide between attorney Megan Kau and former Judge Steve Alm come Nov. 3.

But what the justices do end up deciding could set precedence for electronic petitions in the future.

Attorney Keith Kiuchi, left, and client Tracy Yoshimura, seen here in 2019, have asked the state Supreme Court to find that the city was wrong to reject a petition with electronic signatures.

Brittany Lyte/Civil Beat

Kiuchi has asked the justices to find that the city was wrong to reject those signatures without first making rules to do so. No court in the U.S. has looked at electronic signatures used in an attempt to impeach an elected official. 

“We need to get clarity going forward on what the courts will and won’t allow on electronic signatures,” Kiuchi said in an interview.

But before the high court addresses legal arguments over electronic forms and rulemaking presented in an hourlong hearing Friday, it might get caught on another question: How can someone tell if an electronic signature is real?

Prosecutor Keith Kaneshiro announces a 3rd possible trial for Christopher Deedy.

Prosecutor Keith Kaneshiro is on paid administrative leave.

Cory Lum/Civil Beat

Justice Sabrina McKenna pressed Kiuchi on how a county clerk is supposed to determine that an individual placed their own signature. Kiuchi said that an application used to gather the signatures, DocuSign, leaves a “digital audit trail” that can be followed to identify a signer.

McKenna worried that one person may be able to sign for multiple people.

“Somebody needs to check if those are actually, actually signed by 500 registered voters, and there’s no way to do that,” McKenna said.

Kiuchi’s arguments over why the lower court should have accepted the signatures in the first place stems from the Uniform Electronic Transactions Act, passed by the Legislature in 2000. He argues the act allows the state to accept electronic signatures.

He also argues that the city should have made rules under the Hawaii Administrative Procedures Act before rejecting the signatures. Circuit Judge Todd Eddins, who filled in for Associate Justice Paula Nakayama, asked if the county should have made rules to accept the signatures.

“I think they should have engaged in rulemaking either way, but they didn’t,” Kiuchi responded.

McCorriston, Kaneshiro’s attorney, spent much of his time before the court arguing that the justices didn’t need to consider those questions, because in his view, Yoshimura never submitted 500 signatures.

Rather, McCorriston said, Yoshimura submitted just one: his own. In his view, the other signatures shouldn’t count.

“We’re 499 short,” McCorriston told the court.

While addressing Kiuchi’s arguments over the administrative procedure act, McCorriston cited committee reports from the Legislature that he says indicate individual agencies should be able to decide when and if they want to make up their own rules, like those involving electronic signatures in an impeachment petition.

“You can preserve the status quo without doing anything,” McCorriston said.

Kaneshiro tried to bust Yoshimura for gambling devices in the past, but has failed on both occasions. Yoshimura previously sued Kaneshiro in federal court for unlawful prosecution.

Kaneshiro was still on paid administrative leave over the summer after receiving a target letter from the FBI as part of an ongoing investigation.

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