Electronically Filed Supreme Court SCEC-XX-XXXXXXX 27-AUG-2018 10:44 AM
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
RICHARD Y. KIM, Plaintiff,
vs.
STATE OF HAWAII; ATTORNEY GENERAL RUSSELL A. SUZUKI; OFFICE OF ELECTIONS; SCOTT T. NAGO, Chief Election Officer, Defendants,
and
COLLEEN HANABUSA, as a member of the U.S. House of Representatives for the District of Hawai#i, Real Party-In-Interest.
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 or, in the alternative, for
summary judgment filed by Defendants State of Hawai#i, Attorney
General Russell A. Suzuki, Office of Elections, and Chief
Election Officer Scott T. Nago (“Chief Election Officer Nago”)
(collectively, the “State Defendants”), 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. David Y. 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’s election objection stems from the
first circuit court’s dismissal of his complaint in Civil No. 18-
1-878-06. In Civil No. 18-1-878-06, Kim challenged Congresswoman
Colleen Hanabusa’s (“Congresswoman Hanabusa”) qualifications to
run for the Office of Governor. Kim alleged that Congresswoman
Hanabusa’s candidacy for the Office of Governor violated the
2 “resign to run” provision in art. II, sec. 7 of the Hawai#i State
Constitution. At a hearing held on August 14, 2018, the circuit
court dismissed the complaint. The circuit court’s rulings have
not yet been reduced to a final judgment.
6. Plaintiff Kim also alleges that Chief Election
Officer Nago has a conflict of interest with him and is guilty of
election fraud under HRS § 19-3. Plaintiff Kim contends that the
primary election was rigged and that Chief Election Officer Nago
publicly ridiculed and insulted him by publishing the election
results showing that he received only 1,576 votes (less than 1%
of the votes for the Democratic Party race for governor).
Plaintiff Kim states that he gave out 25,000 name cards to voters
and had “heavy” facebook ads which reached 100,000 users.
Plaintiff Kim alleges that he was publicly ridiculed and insulted
by having a very low number of votes and claims that Chief
Election Officer Nago and others conspired to “rig” the primary
election in order to cause him public humiliation and emotional
pain.
7. Plaintiff Kim asks this court to correctly
interpret and declare that art. II, sec. 7 of the Hawai#i State
Constitution “resign to run” mandate applies to any State
candidate and any elected officer, including federal officer,
disqualify Congresswoman Hanabusa as a gubernatorial candidate,
order a new primary election without Congresswoman Hanabusa’s
name on the ballot, order a full investigation of Chief Election
Officer Nago and the Office of Elections for fraud, temporarily
3 appoint an independent third party to serve as the Chief Election
Officer for the new primary election, and order a manual recount
of the primary election ballots.
8. The State Defendants filed a motion to dismiss the
complaint for failure to name David Y. Ige as a necessary and
indispensable party, lack of subject matter jurisdiction over
Plaintiff Kim’s “appeal” of the circuit court’s dismissal of his
civil action in Civil No. 18-1-0878-06, and failure to present
any evidence of errors, mistakes, irregularities or any other
basis that could cause a difference in the election result. The
State Defendants further argue that the remedies requested by
Plaintiff Kim are improper and cannot be awarded by this court in
a primary election contest. In the alternative, the State
Defendants seek summary judgment in their favor.
9. Plaintiff Kim filed an opposition to the motion to
dismiss.
CONCLUSIONS OF LAW
1. HRCP Rule 19(a)(1) provides that “[a] person who
is subject to service of process shall be joined as a party in
the action if [] in the person’s absence complete relief cannot
be accorded among those already parties[.]”
2. Plaintiff Kim seeks a new primary election without
Congresswoman Hanabusa’s name on the ballot. Inasmuch as David
Y. Ige received the highest votes and is the Democratic Party
candidate for the Office of Governor for the general election, he
is a necessary and indispensable party who should have been named
4 as a defendant and served with a copy of the complaint. In
addition, it is likely that all successful candidates in the
primary election should be named as necessary parties and receive
notice of the election objection. The record, however, is devoid
of any evidence that David Y. Ige (or any of the other successful
candidates) was named a defendant or served with a copy of the
election objection and summons.
3. A primary election contest under HRS §§ 11-172 and
11-173.5 is not the appropriate basis to seek appellate review of
an underlying circuit court civil case.
4. The election objection (e.g., complaint) fails to
state claims upon which relief can be granted.
5. 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
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Electronically Filed Supreme Court SCEC-XX-XXXXXXX 27-AUG-2018 10:44 AM
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
RICHARD Y. KIM, Plaintiff,
vs.
STATE OF HAWAII; ATTORNEY GENERAL RUSSELL A. SUZUKI; OFFICE OF ELECTIONS; SCOTT T. NAGO, Chief Election Officer, Defendants,
and
COLLEEN HANABUSA, as a member of the U.S. House of Representatives for the District of Hawai#i, Real Party-In-Interest.
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 or, in the alternative, for
summary judgment filed by Defendants State of Hawai#i, Attorney
General Russell A. Suzuki, Office of Elections, and Chief
Election Officer Scott T. Nago (“Chief Election Officer Nago”)
(collectively, the “State Defendants”), 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. David Y. 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’s election objection stems from the
first circuit court’s dismissal of his complaint in Civil No. 18-
1-878-06. In Civil No. 18-1-878-06, Kim challenged Congresswoman
Colleen Hanabusa’s (“Congresswoman Hanabusa”) qualifications to
run for the Office of Governor. Kim alleged that Congresswoman
Hanabusa’s candidacy for the Office of Governor violated the
2 “resign to run” provision in art. II, sec. 7 of the Hawai#i State
Constitution. At a hearing held on August 14, 2018, the circuit
court dismissed the complaint. The circuit court’s rulings have
not yet been reduced to a final judgment.
6. Plaintiff Kim also alleges that Chief Election
Officer Nago has a conflict of interest with him and is guilty of
election fraud under HRS § 19-3. Plaintiff Kim contends that the
primary election was rigged and that Chief Election Officer Nago
publicly ridiculed and insulted him by publishing the election
results showing that he received only 1,576 votes (less than 1%
of the votes for the Democratic Party race for governor).
Plaintiff Kim states that he gave out 25,000 name cards to voters
and had “heavy” facebook ads which reached 100,000 users.
Plaintiff Kim alleges that he was publicly ridiculed and insulted
by having a very low number of votes and claims that Chief
Election Officer Nago and others conspired to “rig” the primary
election in order to cause him public humiliation and emotional
pain.
7. Plaintiff Kim asks this court to correctly
interpret and declare that art. II, sec. 7 of the Hawai#i State
Constitution “resign to run” mandate applies to any State
candidate and any elected officer, including federal officer,
disqualify Congresswoman Hanabusa as a gubernatorial candidate,
order a new primary election without Congresswoman Hanabusa’s
name on the ballot, order a full investigation of Chief Election
Officer Nago and the Office of Elections for fraud, temporarily
3 appoint an independent third party to serve as the Chief Election
Officer for the new primary election, and order a manual recount
of the primary election ballots.
8. The State Defendants filed a motion to dismiss the
complaint for failure to name David Y. Ige as a necessary and
indispensable party, lack of subject matter jurisdiction over
Plaintiff Kim’s “appeal” of the circuit court’s dismissal of his
civil action in Civil No. 18-1-0878-06, and failure to present
any evidence of errors, mistakes, irregularities or any other
basis that could cause a difference in the election result. The
State Defendants further argue that the remedies requested by
Plaintiff Kim are improper and cannot be awarded by this court in
a primary election contest. In the alternative, the State
Defendants seek summary judgment in their favor.
9. Plaintiff Kim filed an opposition to the motion to
dismiss.
CONCLUSIONS OF LAW
1. HRCP Rule 19(a)(1) provides that “[a] person who
is subject to service of process shall be joined as a party in
the action if [] in the person’s absence complete relief cannot
be accorded among those already parties[.]”
2. Plaintiff Kim seeks a new primary election without
Congresswoman Hanabusa’s name on the ballot. Inasmuch as David
Y. Ige received the highest votes and is the Democratic Party
candidate for the Office of Governor for the general election, he
is a necessary and indispensable party who should have been named
4 as a defendant and served with a copy of the complaint. In
addition, it is likely that all successful candidates in the
primary election should be named as necessary parties and receive
notice of the election objection. The record, however, is devoid
of any evidence that David Y. Ige (or any of the other successful
candidates) was named a defendant or served with a copy of the
election objection and summons.
3. A primary election contest under HRS §§ 11-172 and
11-173.5 is not the appropriate basis to seek appellate review of
an underlying circuit court civil case.
4. The election objection (e.g., complaint) fails to
state claims upon which relief can be granted.
5. 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
Haw. 47, 48, 527 P.2d 236, 237 (1974).
6. 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 7. 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.
8. 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.
9. 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).
10. 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
entitled to 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).
6 11. Taking Plaintiff Kim’s allegations as true and
viewing them in the light most favorable to him, it appears that
Plaintiff Kim can prove no set of facts that would entitle him to
relief. Plaintiff Kim’s conclusory, speculative allegations that
Chief Election Officer Nago had a conflict of interest with him
and engaged in conspiracy to embarrass him does not amount to
“actual information of mistakes or errors sufficient to change
the results of the election.” Plaintiff Kim further fails to
provide any evidence demonstrating fraud or proving other errors
or misconduct that could have caused a difference between David
Y. Ige’s vote count (124,572) and his vote count (1,576) -- a
difference of 122,996 votes.
12. In a primary election challenge, HRS § 11-173.5(b)
authorizes the supreme court to “decide what candidate was
nominated or elected.”
13. 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.
14. Interpreting art. II, sec. 7 of the Hawai#i State
Constitution for purposes of Civil No. 18-1-0878-06,
disqualifying Congresswoman Hanabusa as a gubernatorial
candidate, ordering a new primary election without Congresswoman
Hanabusa’s name on the ballot, ordering a full investigation of
Chief Election Officer Nago and the Office of Elections for
7 fraud, temporarily appointing an independent third party to serve
as the Chief Election Officer for the new primary election, and
ordering a manual recount of the primary election ballots are not
remedies authorized by HRS § 11-173.5(b).
15. There is no genuine issue of material fact related
to Plaintiff Kim’s election contest.
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered in favor of the State
Defendants. David Y. Ige received the highest number of votes
and his name shall be placed on the ballot as the Democratic
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