Dejean v. Nago.

Opinion

Electronically Filed Supreme Court SCEC-14-0001285 04-DEC-2014 09:45 AM

SCEC-14-0001285

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

KHISTINA CALDWELL DEJEAN, Plaintiff,

vs.

SCOTT NAGO, Chief Election Officer; OFFICE OF ELECTIONS; and AARON SCHULANER, Defendants.

ORIGINAL PROCEEDING

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

On November 7, 2014, plaintiff Khistina Caldwell DeJean

(“DeJean”) filed a document entitled “Election Challen[g]e 2014,”

which we view as an election complaint to contest the November

2014 general election. On November 17, 2014, defendant Scott

Nago (“Nago”), Chief Election Officer of the State of Hawai#i,

the Office of Elections, and Aaron Schulaner (“Schulaner”)

(collectively, “Defendants”) filed a motion to dismiss the

complaint. On November 21, 2014, DeJean filed a reply

memorandum. Upon consideration of the election complaint, the

motion to dismiss, and the reply memorandum, and having heard

this matter without oral argument and in accordance with HRS

§ 11-174.5(b) (2009) (requiring the supreme court to “give judgment, 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. DeJean was not listed on the November 4, 2014

general election ballot as a candidate for any office.

2. DeJean contests the general election by filing

a complaint in the supreme court on November 7, 2014. DeJean

names Nago, the Office of Elections, and Schulaner as defendants.

3. The complaint references a Pennsylvania statute,

cites several case law and HRS § 12-6, and includes a heading

entitled “Jury Verdicts & Settlements.”

4. Defendants moved to dismiss the complaint for

(a) lack of standing and, in the alternative, (b) failure to

state a claim upon which relief can be granted.

5. In response to the motion to dismiss, DeJean

requests, among other things, a special election and that

Defendants Nago and Schulaner, together with Attorney General

David Louie, be fired or jailed immediately.

CONCLUSIONS OF LAW

I.

1. HRS § 11-172 (2009) requires an election contest

to be brought by “any candidate, or qualified political party

directly interested, or any thirty voters of any election

district.”

2. The record indicates that DeJean was not listed on

2 the ballot as a candidate for any office in the November 4, 2014

general election, is not a qualified political party, and does

not comprise thirty voters of an election district.

3. DeJean, therefore, lacks standing to contest the

November 4, 2014 general election.

II.

4. When reviewing a motion to dismiss a complaint for

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

court must accept the plaintiff’s allegations as true and view

them in the light most favorable to him or her; 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).

5. A complaint challenging the results of a general

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).

6. A plaintiff challenging a general election must

show that he or she has actual information of mistakes or errors

sufficient to change the result. Tataii, 119 Hawai#i at 339, 198

3 P.3d at 126; Akaka, 84 Hawai#i at 388, 935 P.2d at 103;

Funakoshi, 65 Haw. at 316-317, 651 P.2d at 915.

7. DeJean has failed to present specific facts or

actual information of mistakes, errors, or irregularities

sufficient to change the results of the general election. Taking

DeJean’s allegations as true and viewing them in the light most

favorable to her, DeJean can prove no set of facts that would

entitle her to any type of relief from the results of the general

election.

8. Therefore, DeJean fails to state a claim upon

which relief can be granted.

JUDGMENT

Based upon the foregoing findings of fact and

conclusions of law, judgment is entered dismissing the complaint.

DATED: Honolulu, Hawai#i, December 4, 2014.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson