Kim v. State of Hawai'i Office of Elections

• Court: Hawaii Supreme Court
• Decided: August 29, 2022
• Docket: SCEC-22-0000508
• Status: Published

Opinion

Electronically Filed Supreme Court SCEC-XX-XXXXXXX 29-AUG-2022 02:02 PM Dkt. 14 FFCL

SCEC-XX-XXXXXXX

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

RICHARD Y. KIM, Plaintiff,

vs.

STATE OF HAWAI#I OFFICE OF ELECTIONS; and SCOTT T. NAGO, Chief Election Officer, Defendants.

ORIGINAL PROCEEDING

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

On August 23, 2022, Plaintiff Richard Y. Kim (Kim)

submitted a document entitled “Election Objection” (complaint),

which was filed as an election contest complaint. On August 26,

2022, Defendants State of Hawai#i Office of Elections (Office of

Elections) and Scott T. Nago, Chief Election Officer (Chief

Election Officer) (collectively, Defendants) filed a motion to

dismiss Kim’s complaint or, in the alternative, for summary

judgment. Upon consideration of the complaint, the documents

attached and submitted in support, and motion to dismiss or for

summary judgment, and having heard this matter without oral

argument, we enter the following findings of fact, conclusions of

law, and judgment. FINDINGS OF FACT

1. Kim was one of seven Democratic Party candidates

for the Office of Governor in the 2022 General Election.

2. The Primary Election was held on August 13, 2022.

3. As provided by the complaint, the result of this

primary election race was, as follows:

Green, Josh 157,476 (60.6%) Cayetano, Vicky 52,237 (20.1%) Kahele, Kai 37,540 (14.4%) Tanabe, Van 1,232 (0.5%) Kim, Richard 985 (0.4%) Bourgoin, David L. (Duke) 589 (0.2%) Lewman, Clyde McClain (Mac) 246 (0.1%) Blank votes 3,673 (1.4%) Over votes 342 (0.1%)

4. On August 23, 2022, Kim filed a complaint

asserting “a due process violation of Hawai#i Administrative

Rules [(HAR)] § 3-177-704” because the Office of Elections did

not provide proper advanced notice to the public and interested

persons to observe and inspect the voting process, including the

testing of the voting machines.

5. Kim also asserts:

a. A visual inspection of the ballots is

necessary due to possible “rigg[ing]” of the vote count because

he received 985 votes, or 0.4% of the democratic votes, which is

less than his total received in 2018;

b. Seemingly related to his vote count rigging

assertion, a conflict of interest exists between himself and the

Chief Election Officer due to his 2018 complaint filed in Civil

No. 18-1-0878-06 GWBC; and

2 c. Vote counting by the computer must have been

compromised by (a) moving a decimal such that he received only 1%

of the actual votes he received on the ballots or (b) improperly

transferring 99% of his votes to Lieutenant Governor Josh Green

(Green).

6. Kim appears to assert he “should have been the

winner” if such compromised vote counting occurred, or at least

be deemed to have more votes than the 985 he received during the

2022 Primary Election. According to Kim, he “should have

received 985[,]000 votes, 38.7% of the democratic votes, 23.2%

for Josh Green, respectively.” In support, he points to the

following evidence:

a. His campaign website attracted 8,967 people,

with over 32,000 views on his 706 posts since 2017.

b. His follower count on Facebook of 1,400 is

higher than Democratic Party Governor candidate Vicky Cayetano’s

follower count.

c. His approach to addressing the COVID-19

pandemic is different from Green’s approach.

d. Media poll numbers should have been different

if Kim were included in those polls.

e. Other polls indicate he should have had more

than 0.4% of the primary election vote in his race.

f. He has thrown “shaka blessings” to “tens of

thousands of passing cars” while sign waving and each time he

received “roughly 5-30% honking (on average)” and other feedback

3 he perceives to be a positive response to him.

g. Voter suppression “repeatedly happened”

because a scheduled forum that included Kim was cancelled when

Green would not attend, he was blocked and unblocked from the

Facebook page for Lieutenant Governor allegedly by Green, and the

Star-Advertiser blocked him from commenting on the live program,

“Spotlight Hawaii.”

7. Kim also asserts he has “shown and set forth

sufficient reasons for triggering the inspection of voting

records and election process[es] including voting machines

testing,” and, if necessary, for correcting and/or changing

decisions in the 2022 Democratic Gubernatorial Primary Election.

He thus requests an order allowing him to inspect ten sets of one

thousand democratic votes of his random choice and selection, and

count them through a voting machine to confirm, or vice versa.

Kim claims this inspection “may likely take less than a few hours

with minimum number of individuals’ involvement in the

process[,]” but then adds that if “his inspection” shows that he

received “many more than 4 in every 1000 democratic ballots of

his random selections[,]” then all votes on O#ahu be counted “if

any only after the Court’s verification of such discrepancies is

necessary.” He then requests that, upon this court’s approval,

the Office of Elections must complete recounting of all of the

democratic votes in all other islands “only after recalibration

and properly retesting the machines in presence of sufficient

number of independent observers and/or further[] hand counting

4 them all if such discrepancies occur.”

8. Defendants assert that the complaint should be

dismissed with prejudice or summary judgment be granted.

CONCLUSIONS OF LAW

1. When reviewing a request to dismiss a complaint,

the court’s review “is based on the contents of the complaint,

the allegations of which [the court] accept[s] as true and

construe[s] in the light most favorable to the plaintiff.

Dismissal is improper 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.” Casumpang v. ILWU, Local 142, 94

Hawai#i 330, 337, 13 P.3d 1235, 1242 (2000) (quotation marks and

citation omitted).

2. 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 (Supp. 2021); Funakoshi v.

King, 65 Haw. 312, 317, 651 P.2d 912, 915 (1982).

3. 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. Funakoshi, 65 Haw. at

316-17, 651 P.2d at 915.

4. In order for a complaint to be legally sufficient,

it must “show[] that the specific acts and conduct of which they

complain would have had the effect of changing the results of the

primary election[.]” Elkins v. Ariyoshi, 56 Haw. 47, 49, 527

5 P.2d 236, 237 (1974).

5. When considering a request to dismiss a complaint,

the court need not accept conclusory or formulaic recitations on

the legal effects of the events alleged. Kealoha v. Machado, 131

Hawai#i 62, 74, 315 P.3d 213, 225 (2013).

6. 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).

7. 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, 269-70, 948 P.2d 1103, 1110-

11 (1997).

8. A fact is material if proof of that fact would

have the effect of establishing or refuting an essential element

of a cause of action asserted by one of the parties. Winfrey v.

GGP Ala Moana LLC, 130 Hawai#i 262, 271, 308 P.3d 891, 900

(2013).

9. On a motion for summary judgment, this court must

view the evidence in the light most favorable to the nonmoving

party. Winfrey, 130 Hawai#i at 271, 308 P.3d at 900.

10. However, this “court is permitted to draw only

those inferences of which the evidence is reasonably susceptible

and it may not resort to speculation.” Id. (quoting Pioneer Mill

Co. v. Dow, 90 Hawai#i 289, 295, 978 P.2d 727, 733 (1999)); see

6 Jenkins v. Liberty Newspapers Ltd. P’ship, 89 Hawai#i 254, 269,

971 P.3d 1089, 1104 (1999) (“Accordingly, there being no factual

basis, other than speculation, upon which a jury could have found

that the alleged defamation was the legal cause of any claimed

loss, we hold that the circuit court properly granted [the]

motion for summary judgment as to the negligence count of [the]

complaint.” (Brackets added)).

11. An election contest cannot be based upon mere

belief or indefinite information. Tataii v. Cronin, 119 Hawai#i

337, 339, 198 P.3d 124, 126 (2008); Akaka v. Yoshina, 84 Hawai#i

383, 387-88, 935 P.2d 98, 102-03 (1997). For example, it is not

sufficient that a plaintiff points to a “poorly run and

inadequately supervised election process” that suggests “room for

abuse” or “possibilities of fraud.” Akaka, 84 Hawai#i at 388,

935 P.2d at 103.

12. HRS § 11-172 governs election contests and

provides in relevant part: “With respect to any election, any

candidate, or qualified political party directly interested, or

any thirty voters of any election district, may file a complaint

in the supreme court. The complaint shall set 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.”

13. HRS § 11-173.5 (2009 & Supp. 2021) provides for,

among other matters, time requirements for primary election

contests for cause to be filed in the supreme court, as well as

7 the remedy allowed to be provided in primary election contests.

14. 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 contests.

Funakoshi, 65 Haw. at 316, 651 P.2d at 914.

15. As such, allowing Kim to visually inspect primary

election ballots is not a remedy authorized by HRS § 11-173.5(b).

See Funakoshi, 65 Haw. at 316, 651 P.2d at 914; Elkins, 56 Haw.

at 49, 527 P.2d at 237.

16. Based on this court’s review of the evidence

submitted in support of his complaint, there is no evidence or

reasonable inference drawn from the evidence submitted that there

was computer programming manipulation on his name on the

democratic ballots such that he received only 1% of the actual

votes he should have had. This claim thus amounts to speculation

and does not support his assertion that he should be declared the

winner. See Winfrey, 130 Hawai#i at 271, 308 P.3d at 900.

17. It is similarly speculative to construe (1) Kim’s

different approach to the COVID-19 pandemic, (2) media poll

numbers without Kim, (3) a cancelled forum, (4) being blocked

from commenting on the Star-Advertiser’s “Spotlight Hawaii,” and

(5) being blocked and unblocked from the Lieutenant Governor’s

Facebook page to mean Kim received more votes than reported by

the Office of Elections, let alone enough votes to overcome the

amount of votes that Green received. See Winfrey, 130 Hawai#i at

271, 308 P.3d at 900; Akaka, 84 Hawai#i at 388, 935 P.2d at 103.

8 18. It is not reasonable to infer that Kim’s (1)

campaign website statistics, (2) Facebook follower count, and (3)

throwing “shaka blessings” to passing cars while sign waving

shows that Kim received more votes than Green in the primary

election because none of the evidence submitted supports an

inference that any visitor to his campaign website, Facebook

follower, or person he waved to while sign waving represents a

person who is registered to vote in the State of Hawai#i’s 2022

Primary Election and voted for Kim. See Winfrey, 130 Hawai#i at

271, 308 P.3d at 900; Akaka, 84 Hawai#i at 388, 935 P.2d at 103.

19. It is also not reasonable to infer that Kim

received more votes than Green based on the results of a poll

attached to Kim’s complaint because the poll itself shows Green

with a higher percentage of voters than Kim. See Winfrey, 130

Hawai#i at 271, 308 P.3d at 900; Akaka, 84 Hawai#i at 388, 935

P.2d at 103.

20. Kim’s assertion that he should be declared the

winner is thus based on speculation or unreasonable inferences

from the evidence submitted in support of his complaint (i.e.,

the exhibits attached to the complaint). See HRS § 11-173.5(b)

(requiring this court to hear the primary election contest “in a

summary manner” and “shall cause the evidence to be reduced to

writing”).

21. Accordingly, there being no genuine issue of

material fact related to Kim’s election contest, we find and

conclude in favor of Defendants as a matter of law.

9 JUDGMENT

Based upon the foregoing findings of fact and

conclusions of law, judgment is entered in favor of Defendants.

Josh Green received the highest number of votes and his name

shall be placed on the ballot as the Democratic Party candidate

The clerk of the supreme court shall 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 29, 2022.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins