Cushnie v. Nago

• Court: Hawaii Supreme Court
• Decided: December 15, 2022
• Docket: SCEC-22-0000703
• Status: Published

Opinion

Electronically Filed Supreme Court SCEC-XX-XXXXXXX 15-DEC-2022 08:44 AM Dkt. 26 FFCL

SCEC-XX-XXXXXXX

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

RALPH S. CUSHNIE, along with more than Thirty Voters, Plaintiffs,

vs.

SCOTT T. NAGO, personally and in his official capacity as Chief Election Officer, Office of Elections, State of Hawaiʻi, Defendant.

ORIGINAL PROCEEDING

FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT (By: Nakayama, Acting C.J., McKenna, Wilson, Eddins JJ., and Circuit Judge Remigio, in place of Recktenwald, C.J., recused)

On November 22, 2022, Plaintiffs Ralph S. Cushnie, along

with more than Thirty Voters filed a complaint in this court

entitled “Election Complaint pursuant to HRS § 11-172 and HRS

§ 11-174.5 and request for declaratory judgement pursuant to

HRCP Rule 57” (complaint). The named party Defendant is Scott

T. Nago, personally and in his official capacity as Chief Election Officer, Office of Elections, State of Hawaiʻi. On

November 28, 2022, Defendant Scott T. Nago in his official

capacity as the Chief Election Officer for the Office of

Elections, State of Hawaiʻi (Office of Elections) filed a motion

to dismiss the complaint for failure to state a claim or, in the

alternative, for summary judgment. Subsequently, Plaintiffs and

the Office of Elections filed further briefing and documents on

the motion.

Upon consideration of the complaint and the documents

attached, the motion to dismiss, and having heard this matter

without oral argument, we enter the following findings of fact,

conclusions of law, and enter judgment dismissing the complaint.

FINDINGS OF FACT

1. Plaintiffs are over thirty voters who reside in the

representative district number 17 on the island of Kauaʻi.

2. On November 22, 2022, Plaintiffs timely filed a

complaint challenging the statewide elections results based on

purported deficiencies in the audit practices of the Office of

Elections.

3. The relief requested by the complaint is two-fold.

First, Plaintiffs request a declaratory judgment that interprets

HRS § 16-42 (2009). Second, in the alternative, Plaintiffs

request the court invalidate the general election on the grounds

that a correct result cannot be ascertained because of a mistake

or fraud on the part of the precinct officials.

2 4. The complaint is devoid of any specific allegations as

to how the audit procedure advocated by Plaintiffs would make

any difference in the outcome of the election.

5. In addition to the claims outlined above, the

complaint includes a claim for declaratory judgment against

Defendant Scott T. Nago in his personal capacity.

6. On November 22, 2022, the return of service was filed

to establish proof of service of the complaint and summons on

“Scott T. Nago, in his official capacity only.” To date, the

Plaintiffs have not filed any return of service as to Defendant

Scott Nago in his personal capacity.

7. The Office of Elections moved to dismiss the complaint

for failure to state a claim upon which relief can be granted,

in pertinent part, because the complaint lacks any specific

allegations of errors, mistakes, or fraud that would change the

outcome of the election result.

CONCLUSIONS OF LAW

1. Pursuant to Hawaiʻi Rules of Evidence Rule 202(b)

(2016), the request for judicial notice of the Hawaiʻi laws cited

in the complaint is granted.

2. The issuance of a declaratory judgment on the

interpretation of HRS § 16-42 is not within the original

jurisdiction of the supreme court. See HRS § 602-5 (2016).

Therefore, this court is without original jurisdiction to

consider the Plaintiffs’ claim for declaratory judgment.

3 3. An election contest is instituted by filing a

complaint in the supreme court setting forth “any cause or

causes, such as but not limited to, provable fraud, overages, or

underages, that could cause a difference in the election

results.” HRS § 11-172 (Supp. 2021). “The complaint shall also

set forth any reason for reversing, correcting, or changing the

decisions of the voter service center officials or the officials

at the counting center in an election using the electronic

voting system.” Id.

4. This court has held that a complaint challenging the

results of an election pursuant to HRS § 11-172 fails to state a

claim unless: (1) the plaintiffs demonstrate errors that would

change the outcome of the election, Tataii v. Cronin, 119 Hawaiʻi

337, 339, 198 P.3d 124, 126 (2008) (citing Akaka v. Yoshina, 84

Hawaiʻi 383, 387, 935 P.2d 98, 102 (1997)), or (2) the plaintiffs

demonstrate that the correct result cannot be ascertained

because of a mistake or fraud on the part of the precinct

officials. Akaka, 84 Hawaiʻi at 387, 935 P.2d at 102; see HRS

§ 11-174.5(b) (2009 & Supp. 2021).

5. “[A] complaint should not be dismissed for failure to

state a claim unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would

entitle him to relief.” Bank of Am., N.A. v. Reyes-Toledo, 143

Hawaiʻi 249, 258, 428 P.3d 761, 770 (2018) (citation omitted).

6. “Our review is strictly limited to the allegations of

the complaint, which we view in the light most favorable to the

4 plaintiff and deem to be true.” Civ. Beat L. Ctr. for the Pub.

Int., Inc. v. City & Cnty. of Honolulu, 144 Hawaiʻi 466, 474, 445

P.3d 47, 55 (2019) (citation and internal quotations omitted).

However, “the court is not required to accept conclusory

allegations on the legal effect of the events alleged.” Id.

(citation omitted).

7. Here, the complaint fails to allege any specific facts

that the audit procedures requested would change the outcome of

the election. And, Plaintiffs’ belief and indefinite assertions

that the requested audit could change the outcome of all

statewide elections, by itself, is insufficient to state a claim

under HRS §§ 11-172 and 11-174.5(b). See Hawaiʻi Rules of Civil

Procedure Rule 9(b) (2000) (“In all averments of fraud or

mistake, the circumstances constituting fraud or mistake shall

be stated with particularity.”).

8. Accordingly, Plaintiffs’ claim that the general

election results statewide should be invalidated fails to state

a claim upon which relief can be granted. See Tataii, 119

Hawaiʻi at 339-40, 198 P.3d at 126-27 (“In the absence of facts

showing that irregularities exceed the reported margin between

the candidates, the complaint is legally insufficient because,

even if its truth were assumed, the result of the election would

not be affected.”).

5 JUDGMENT

Based upon the foregoing findings of fact and conclusions

of law, judgment is entered granting the motion to dismiss and

dismissing the complaint as to all claims and parties.

Dated: Honolulu, Hawaiʻi, December 15, 2022.

/s/ Paula A. Nakayama /s/ Sabrina S. McKenna /s/ Michael D. Wilson /s/ Todd W. Eddins /s/ Catherine H. Remigio