Electronically Filed Supreme Court SCEC-12-0000714 23-AUG-2012 11:00 AM
NO. SCEC-12-0000714
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
KHISTINA CALDWELL DEJEAN, Plaintiff,
vs.
SCOTT NAGO, Chief Election Officer, Office of Elections, State of Hawai#i; and DAVID M. LOUIE, Attorney General, State of Hawai#i, Defendants.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT (By: Recktenwald, C.J., Nakayama, Acoba, McKenna and Pollack, JJ.)
We have considered the August 14, 2012 election
complaint filed by Plaintiff Khistina Caldwell DeJean, the August
20, 2012 motion to dismiss or, in the alternative, for summary
judgment filed by Defendants David Louie and Scott Nago, the
August 20, 2012 answer filed by Bernice Mau, and the declaration
and/or exhibits appended to each. Having heard this matter
without oral argument and in accordance with HRS § 11-173.5(b)
(2009) (requiring the supreme court to “give judgment fully
stating all findings of fact and of law”), we set forth the
following findings of fact and conclusions of law and enter the
following judgment. FINDINGS OF FACT
1. Plaintiff Khistina Caldwell DeJean (“DeJean”) was
one of four candidates for the office of mayor of the City and
County of Honolulu in the August 11, 2012 primary election.
2. The election results for Honolulu mayor were:
(1) Benjamin Cayetano: 90,956 votes (44.1%); (2) Kirk Caldwell:
59,963 votes (29.1%); (3) Peter Carlisle: 51,101 votes (24.8%);
and (5) Khistina DeJean: 1,289 votes (0.6%).
3. On August 14, 2012, Plaintiff DeJean filed a
complaint challenging the primary election. She alleges that (a)
some polling places in Hawai#i county opened late, (b) the media
discriminated against her when they did not “[o]pen [t]he [d]oor”
to minor children during a debate and excluded her from media
opportunities, (c) extending voting hours at the end of the day
does not help people who have to vote before going to work in the
morning, and (d) she received a “threat” to report for jury duty
within ten days.
4. Plaintiff DeJean seeks judgment from the supreme
court to remain on the ballot for the November 6, 2012 general
election as a candidate for Honolulu mayor.
5. Defendants David Louie, attorney general for the
State of Hawai#i, and Scott Nago, chief election officer for the
State of Hawai#i, move for dismissal of the complaint or, in the
alternative, for summary judgment for failure to present any
evidence of error, mistakes, irregularities or any other basis
that could cause a difference in the election results.
2 6. Bernice Mau, city clerk for the City and County of
Honolulu, who was not named as a defendant in the complaint but
was served with the complaint and summons, denies the allegations
and prays that the court find that candidates Benjamin Cayetano
and Kirk Caldwell be placed on the general election ballot for
Honolulu mayor because any delay in opening the polling places in
Hawai#i county did not impact the Honolulu mayor’s race since
only voters in the City and County of Honolulu have the right to
vote for Honolulu mayor and neither she nor any of the defendants
had legal obligations to ensure that DeJean was provided
sufficient media opportunities.
CONCLUSIONS OF LAW
1. When reviewing a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted, the
court must accept plaintiff’s allegations as true and view them
in the light most favorable to the plaintiff; dismissal is proper
only if it appears beyond doubt that the plaintiff can prove no
set of facts in support of his or her claim that would entitle
him or her to relief. AFL Hotel & Restaurant Workers Health &
Welfare Trust Fund v. Bosque, 110 Hawai#i 318, 321, 132 P.3d
1229, 1232 (2006).
2. The court’s consideration of matters outside the
pleadings converts a motion to dismiss into one for summary
judgment. Foytik v. Chandler, 88 Hawai#i 307, 313, 966 P.2d 619,
625 (1998). Summary judgment is appropriate where there is no
genuine issue as to any material fact and the moving party is
3 entitled to a judgment as a matter of law. Estate of Doe v. Paul
Revere Ins. Group, 86 Hawai#i 262, 269-270, 948 P.2d 1103, 1110-
1111 (1997).
3. A complaint challenging the results of a primary
election pursuant to HRS § 11-172 fails to state a claim unless
the plaintiff demonstrates errors, mistakes or irregularities
that would change the outcome of the election. Tataii v. Cronin,
119 Hawai#i 337, 339, 198 P.3d 124, 126 (2008); Akaka v. Yoshina,
84 Hawai#i 383, 387, 935 P.2d 98, 102 (1997); Funakoshi v. King,
65 Haw. 312, 317, 651 P.2d 912, 915 (1982); Elkins v. Ariyoshi,
56 Haw. 47, 48, 527 P.2d 236, 237 (1974).
4. A plaintiff challenging a primary election must
show that he or she has actual information of mistakes or errors
sufficient to change the result. Tataii v. Cronin, 119 Hawai#i
at 339, 198 P.3d at 126; Akaka v. Yoshina, 84 Hawai#i at 388, 935
P.2d at 103; Funakoshi v. King, 65 Haw. at 316-317, 651 P.2d at
915.
5. It is not sufficient for a plaintiff challenging an
election to allege a poorly run and inadequately supervised
election process that evinces room for abuse or possibilities of
fraud. An election contest cannot be based upon mere belief or
indefinite information. Tataii v. Cronin, 119 Hawai#i at 339,
198 P.3d at 126; Akaka v. Yoshina, 84 Hawai#i at 387-388, 935
P.2d at 102-103.
6. The late opening of some of the polling places in
Hawai#i county on August 11, 2012 and the subsequent extension of
4 voting hours in Hawai#i county do not amount to actual
information of mistakes or errors sufficient to change the
election results for Honolulu mayor.
7. The matters concerning the media’s alleged refusal
to allow minor children to attend a debate, the media’s alleged
exclusion of DeJean from media opportunities and an alleged
“threat” to report for jury duty within ten days do not
demonstrate that the results of the August 11, 2012 primary
election for Honolulu mayor would have changed.
8. In a primary election challenge, HRS § 11-173.5(b)
authorizes the supreme court to “decide what candidate was
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Electronically Filed Supreme Court SCEC-12-0000714 23-AUG-2012 11:00 AM
NO. SCEC-12-0000714
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
KHISTINA CALDWELL DEJEAN, Plaintiff,
vs.
SCOTT NAGO, Chief Election Officer, Office of Elections, State of Hawai#i; and DAVID M. LOUIE, Attorney General, State of Hawai#i, Defendants.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT (By: Recktenwald, C.J., Nakayama, Acoba, McKenna and Pollack, JJ.)
We have considered the August 14, 2012 election
complaint filed by Plaintiff Khistina Caldwell DeJean, the August
20, 2012 motion to dismiss or, in the alternative, for summary
judgment filed by Defendants David Louie and Scott Nago, the
August 20, 2012 answer filed by Bernice Mau, and the declaration
and/or exhibits appended to each. Having heard this matter
without oral argument and in accordance with HRS § 11-173.5(b)
(2009) (requiring the supreme court to “give judgment fully
stating all findings of fact and of law”), we set forth the
following findings of fact and conclusions of law and enter the
following judgment. FINDINGS OF FACT
1. Plaintiff Khistina Caldwell DeJean (“DeJean”) was
one of four candidates for the office of mayor of the City and
County of Honolulu in the August 11, 2012 primary election.
2. The election results for Honolulu mayor were:
(1) Benjamin Cayetano: 90,956 votes (44.1%); (2) Kirk Caldwell:
59,963 votes (29.1%); (3) Peter Carlisle: 51,101 votes (24.8%);
and (5) Khistina DeJean: 1,289 votes (0.6%).
3. On August 14, 2012, Plaintiff DeJean filed a
complaint challenging the primary election. She alleges that (a)
some polling places in Hawai#i county opened late, (b) the media
discriminated against her when they did not “[o]pen [t]he [d]oor”
to minor children during a debate and excluded her from media
opportunities, (c) extending voting hours at the end of the day
does not help people who have to vote before going to work in the
morning, and (d) she received a “threat” to report for jury duty
within ten days.
4. Plaintiff DeJean seeks judgment from the supreme
court to remain on the ballot for the November 6, 2012 general
election as a candidate for Honolulu mayor.
5. Defendants David Louie, attorney general for the
State of Hawai#i, and Scott Nago, chief election officer for the
State of Hawai#i, move for dismissal of the complaint or, in the
alternative, for summary judgment for failure to present any
evidence of error, mistakes, irregularities or any other basis
that could cause a difference in the election results.
2 6. Bernice Mau, city clerk for the City and County of
Honolulu, who was not named as a defendant in the complaint but
was served with the complaint and summons, denies the allegations
and prays that the court find that candidates Benjamin Cayetano
and Kirk Caldwell be placed on the general election ballot for
Honolulu mayor because any delay in opening the polling places in
Hawai#i county did not impact the Honolulu mayor’s race since
only voters in the City and County of Honolulu have the right to
vote for Honolulu mayor and neither she nor any of the defendants
had legal obligations to ensure that DeJean was provided
sufficient media opportunities.
CONCLUSIONS OF LAW
1. When reviewing a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted, the
court must accept plaintiff’s allegations as true and view them
in the light most favorable to the plaintiff; dismissal is proper
only if it appears beyond doubt that the plaintiff can prove no
set of facts in support of his or her claim that would entitle
him or her to relief. AFL Hotel & Restaurant Workers Health &
Welfare Trust Fund v. Bosque, 110 Hawai#i 318, 321, 132 P.3d
1229, 1232 (2006).
2. The court’s consideration of matters outside the
pleadings converts a motion to dismiss into one for summary
judgment. Foytik v. Chandler, 88 Hawai#i 307, 313, 966 P.2d 619,
625 (1998). Summary judgment is appropriate where there is no
genuine issue as to any material fact and the moving party is
3 entitled to a judgment as a matter of law. Estate of Doe v. Paul
Revere Ins. Group, 86 Hawai#i 262, 269-270, 948 P.2d 1103, 1110-
1111 (1997).
3. A complaint challenging the results of a primary
election pursuant to HRS § 11-172 fails to state a claim unless
the plaintiff demonstrates errors, mistakes or irregularities
that would change the outcome of the election. Tataii v. Cronin,
119 Hawai#i 337, 339, 198 P.3d 124, 126 (2008); Akaka v. Yoshina,
84 Hawai#i 383, 387, 935 P.2d 98, 102 (1997); Funakoshi v. King,
65 Haw. 312, 317, 651 P.2d 912, 915 (1982); Elkins v. Ariyoshi,
56 Haw. 47, 48, 527 P.2d 236, 237 (1974).
4. A plaintiff challenging a primary election must
show that he or she has actual information of mistakes or errors
sufficient to change the result. Tataii v. Cronin, 119 Hawai#i
at 339, 198 P.3d at 126; Akaka v. Yoshina, 84 Hawai#i at 388, 935
P.2d at 103; Funakoshi v. King, 65 Haw. at 316-317, 651 P.2d at
915.
5. It is not sufficient for a plaintiff challenging an
election to allege a poorly run and inadequately supervised
election process that evinces room for abuse or possibilities of
fraud. An election contest cannot be based upon mere belief or
indefinite information. Tataii v. Cronin, 119 Hawai#i at 339,
198 P.3d at 126; Akaka v. Yoshina, 84 Hawai#i at 387-388, 935
P.2d at 102-103.
6. The late opening of some of the polling places in
Hawai#i county on August 11, 2012 and the subsequent extension of
4 voting hours in Hawai#i county do not amount to actual
information of mistakes or errors sufficient to change the
election results for Honolulu mayor.
7. The matters concerning the media’s alleged refusal
to allow minor children to attend a debate, the media’s alleged
exclusion of DeJean from media opportunities and an alleged
“threat” to report for jury duty within ten days do not
demonstrate that the results of the August 11, 2012 primary
election for Honolulu mayor would have changed.
8. In a primary election challenge, HRS § 11-173.5(b)
authorizes the supreme court to “decide what candidate was
nominated or elected.” HRS § 11-173.5(b).
9. The remedy provided by HRS § 11-173.5(b) of having
the court decide which candidate was nominated or elected is the
only remedy that can be given for primary election irregularities
challenged pursuant to HRS § 11-173.5. Funakoshi v. King, 65
Haw. at 316, 651 P.2d at 914.
10. Allowing Plaintiff DeJean to remain on the ballot
for the general election as a candidate for Honolulu mayor is not
a remedy authorized by HRS § 11-173.5(b).
11. There is no genuine issue of material fact related
to plaintiff DeJean’s election contest.
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, summary judgment is entered in favor of
defendants David Louie, attorney general for the State of
5 Hawai#i, and Scott Nago, chief election officer for the State of
Hawai#i. Benjamin Cayetano and Kirk Caldwell received the
highest number of votes for Honolulu mayor in the August 11, 2012
primary election and their names will be placed on the ballot for
the November 6, 2012 general election.
The clerk of the supreme court shall forthwith serve a
certified copy of this judgment on the chief election officer and
county clerk in accordance with HRS § 11-173.5(b).
DATED: Honolulu, Hawai#i, August 23, 2012.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack