Electronically Filed Supreme Court SCEC-XX-XXXXXXX 27-AUG-2018 10:42 AM
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
RICHARD Y. KIM, Plaintiff,
vs.
DAVID IGE, Democratic Candidate for Governor, Defendant.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
We have considered the August 16, 2018 “Election
Objection” filed by Plaintiff Richard Y. Kim (“Plaintiff Kim”),
the August 21, 2018 motion to dismiss filed by Defendant David
Ige (“Defendant Ige), and the August 22, 2018 memorandum in
opposition to the motion to dismiss filed by Plaintiff Kim.
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 Kim was one of six Democratic Party
candidates for the Office of Governor in the August 11, 2018 primary election.
2. The election result for the Democratic Party
candidate for the Office of Governor was as follows:
David Y. Ige 124,572 (50.2%) Colleen Wakako Hanabusa 107,631 (43.4%) Ernest Caravalho 5,662 (2.3%) Wendell J. Ka#ehu#ae#a 2,298 (0.9%) Richard Y. Kim 1,576 (0.6%) Van (Tanaban) Tanabe 775 (0.3%) Blank Votes 5,116 (2.1%) Over Votes 304 (0.1%)
3. Defendant Ige is the Democratic Party candidate
who received the highest number of votes.
4. On August 16, 2018, Plaintiff Kim filed an
“Election Objection” challenging the August 11, 2018 primary
election.
5. Plaintiff Kim alleges that Defendant Ige “bribed”
the Korean community and “comforted Korean voters’ heart[s]” in
March and April 2018 by visiting the United Korean Association of
Hawaii, meeting with the Association’s president and the Korean
community group, praising the Korean community, and donating $1
million to the Hawai#i Korean Cultural Center. Plaintiff Kim
alleges that Defendant Ige and unnamed individuals conspired to
“influence voters in [the] Korean community” and “sway . . .
voters toward him” and, as a result, Plaintiff Kim “lost many of
his votes from [the] Korean community.” Plaintiff Kim contends
that Defendant Ige committed election offenses in violation of
HRS §§ 19-3 (election fraud) and 19-6 (misdemeanors), the Federal
Election Campaign Act, 42 U.S.C.S. § 1985, the Hatch Act, and
other violations of federal law.
2 6. Plaintiff Kim asks this court to disqualify
Defendant Ige as the Democratic Party gubernatorial candidate and
order a new primary election without Defendant Ige’s name on the
ballot.
7. Defendant Ige filed a motion to dismiss the
election objection for lack of subject matter jurisdiction over
the criminal allegations raised by Plaintiff Kim and for failure
to present any evidence of errors, mistakes, irregularities or
any other basis that could cause a difference in the election
result.
8. Plaintiff Kim filed an opposition to the motion to
dismiss.
CONCLUSIONS OF LAW
1. This court does not have original jurisdiction
over criminal prosecutions. See HRS § 602-5(a) (2016). As such,
this court lacks jurisdiction to prosecute the criminal offenses
alleged by Plaintiff Kim.
2. The election objection (e.g., complaint) fails to
state claims upon which relief can be granted.
3. A complaint challenging the results of a primary
election fails to state a claim unless the plaintiff demonstrates
errors, mistakes or irregularities that would change the outcome
of the election. See HRS § 11-172 (2009); 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
3 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 election result. Tataii, 119 Hawai#i at
339, 198 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.
5. In order for a complaint to be legally sufficient,
it must “show[] that the specific acts and conduct . . .
complained of would have had the effect of changing the results
of the primary election.” Elkins, 56 Haw. at 49, 527 P.2d at
237.
6. An election contest cannot be based upon mere
belief or indefinite information. Tataii, 119 Hawai#i at 339,
198 P.3d at 126; Akaka, 84 Hawai#i at 387-388, 935 P.2d at 102-
103.
7. 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).
8. Taking Plaintiff Kim’s allegations as true and
viewing them in the light most favorable to him, it appears that
4 Plaintiff Kim can prove no set of facts that would entitle him to
relief. Plaintiff Kim’s conclusory, speculative allegations of
bribery and election fraud do not amount to “actual information
of mistakes or errors sufficient to change the results of the
election.” The difference between Defendant Ige’s vote count
(124,572) and Plaintiff Kim’s vote count (1,576) is 122,996
votes. Plaintiff Kim fails to present any evidence that the
alleged wrongdoings would result in a change of 122,996 votes in
his favor.
9. In a primary election challenge, HRS § 11-173.5(b)
authorizes the supreme court to “decide what candidate was
nominated or elected.”
10. The remedy provided by HRS § 11-173.5(b) of having
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Electronically Filed Supreme Court SCEC-XX-XXXXXXX 27-AUG-2018 10:42 AM
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
RICHARD Y. KIM, Plaintiff,
vs.
DAVID IGE, Democratic Candidate for Governor, Defendant.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
We have considered the August 16, 2018 “Election
Objection” filed by Plaintiff Richard Y. Kim (“Plaintiff Kim”),
the August 21, 2018 motion to dismiss filed by Defendant David
Ige (“Defendant Ige), and the August 22, 2018 memorandum in
opposition to the motion to dismiss filed by Plaintiff Kim.
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 Kim was one of six Democratic Party
candidates for the Office of Governor in the August 11, 2018 primary election.
2. The election result for the Democratic Party
candidate for the Office of Governor was as follows:
David Y. Ige 124,572 (50.2%) Colleen Wakako Hanabusa 107,631 (43.4%) Ernest Caravalho 5,662 (2.3%) Wendell J. Ka#ehu#ae#a 2,298 (0.9%) Richard Y. Kim 1,576 (0.6%) Van (Tanaban) Tanabe 775 (0.3%) Blank Votes 5,116 (2.1%) Over Votes 304 (0.1%)
3. Defendant Ige is the Democratic Party candidate
who received the highest number of votes.
4. On August 16, 2018, Plaintiff Kim filed an
“Election Objection” challenging the August 11, 2018 primary
election.
5. Plaintiff Kim alleges that Defendant Ige “bribed”
the Korean community and “comforted Korean voters’ heart[s]” in
March and April 2018 by visiting the United Korean Association of
Hawaii, meeting with the Association’s president and the Korean
community group, praising the Korean community, and donating $1
million to the Hawai#i Korean Cultural Center. Plaintiff Kim
alleges that Defendant Ige and unnamed individuals conspired to
“influence voters in [the] Korean community” and “sway . . .
voters toward him” and, as a result, Plaintiff Kim “lost many of
his votes from [the] Korean community.” Plaintiff Kim contends
that Defendant Ige committed election offenses in violation of
HRS §§ 19-3 (election fraud) and 19-6 (misdemeanors), the Federal
Election Campaign Act, 42 U.S.C.S. § 1985, the Hatch Act, and
other violations of federal law.
2 6. Plaintiff Kim asks this court to disqualify
Defendant Ige as the Democratic Party gubernatorial candidate and
order a new primary election without Defendant Ige’s name on the
ballot.
7. Defendant Ige filed a motion to dismiss the
election objection for lack of subject matter jurisdiction over
the criminal allegations raised by Plaintiff Kim and for failure
to present any evidence of errors, mistakes, irregularities or
any other basis that could cause a difference in the election
result.
8. Plaintiff Kim filed an opposition to the motion to
dismiss.
CONCLUSIONS OF LAW
1. This court does not have original jurisdiction
over criminal prosecutions. See HRS § 602-5(a) (2016). As such,
this court lacks jurisdiction to prosecute the criminal offenses
alleged by Plaintiff Kim.
2. The election objection (e.g., complaint) fails to
state claims upon which relief can be granted.
3. A complaint challenging the results of a primary
election fails to state a claim unless the plaintiff demonstrates
errors, mistakes or irregularities that would change the outcome
of the election. See HRS § 11-172 (2009); 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
3 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 election result. Tataii, 119 Hawai#i at
339, 198 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.
5. In order for a complaint to be legally sufficient,
it must “show[] that the specific acts and conduct . . .
complained of would have had the effect of changing the results
of the primary election.” Elkins, 56 Haw. at 49, 527 P.2d at
237.
6. An election contest cannot be based upon mere
belief or indefinite information. Tataii, 119 Hawai#i at 339,
198 P.3d at 126; Akaka, 84 Hawai#i at 387-388, 935 P.2d at 102-
103.
7. 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).
8. Taking Plaintiff Kim’s allegations as true and
viewing them in the light most favorable to him, it appears that
4 Plaintiff Kim can prove no set of facts that would entitle him to
relief. Plaintiff Kim’s conclusory, speculative allegations of
bribery and election fraud do not amount to “actual information
of mistakes or errors sufficient to change the results of the
election.” The difference between Defendant Ige’s vote count
(124,572) and Plaintiff Kim’s vote count (1,576) is 122,996
votes. Plaintiff Kim fails to present any evidence that the
alleged wrongdoings would result in a change of 122,996 votes in
his favor.
9. In a primary election challenge, HRS § 11-173.5(b)
authorizes the supreme court to “decide what candidate was
nominated or elected.”
10. 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, 65 Haw. at
316, 651 P.2d at 914.
11. Disqualifying Defendant Ige pursuant to HRS §§ 19-
3, 19-4, and 19-6, and ordering a new primary election without
Defendant Ige’s name on the ballot are not remedies authorized by
HRS § 11-173.5(b).
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered in favor of Defendant
Ige. Defendant David Y. Ige received the highest number of votes
and his name shall be placed on the ballot as the Democratic
5 Party candidate for the Office of Governor for the 2018 general
The clerk of the supreme court shall also forthwith
serve a certified copy of this judgment on the chief election
officer in accordance with HRS § 11-173.5(b).
DATED: Honolulu, Hawai#i, August 27, 2018.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson