                                                      Electronically Filed
                                                      Supreme Court
                                                      SCEC-12-0000725
                                                      31-AUG-2012
                                                      11:39 AM



                       NO. SCEC-12-0000725

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                   KALEIHIKINA “KALEI” AKAKA,
                            Plaintiff,

                               vs.

            FRED HOUSEL; NICOLE LOWEN; BUCKY LESLIE;
      SCOTT NAGO, Chief Election Officer; STATE OF HAWAI#I
 OFFICE OF ELECTIONS; JAMAE KAWAUCHI, County of Hawai#i Clerk;
            OFFICE OF THE CLERK, HAWAI#I COUNTY; and
       NEIL ABERCROMBIE, Governor of the 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 (1) the August 21, 2012 election

complaint filed by Plaintiff Kaleihikina “Kalei” Akaka, (2) the

August 27, 2012 motion to dismiss filed by Defendants Scott Nago,

Chief Election Officer, and Governor Neil Abercrombie, and the

declaration and document appended thereto and submitted in

support thereof, (3) the August 27, 2012 motion to dismiss filed

by Defendants Jamae Kawauchi, County of Hawai#i Clerk, and the

Office of the Clerk, Hawai#i County, and (4) the August 28, 2012
joinder filed by Defendant Nicole Lowen.     Having considered 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.   Defendant Kaleihikina “Kalei” Akaka (“Akaka”) was

one of four Democratic Party candidates running for the office of

state representative, district 6, in the August 11, 2012 primary

election.

            2.   The election results for the Democratic Party race

for the office of state representative, district 6 were:

                 Nicole Lowen                   1,067   (30.2%)
                 Kalei Akaka                    1,022   (29.0%)
                 Bucky Leslie                     734   (20.8%)
                 Fred Housel                      461   (13.1%)
                 Blank Votes                      243   ( 6.9%)
                 Over Votes                         2   ( 0.1%)

            3.   On August 11, 2012, Governor Neil Abercrombie

(“Governor Abercrombie”) issued an Election Proclamation

extending the polling hours for the County of Hawai#i until 7:30

p.m. pursuant to Hawai#i Revised Statutes (“HRS”) § 128-10(6),

instead of HRS § 128-9(6).

            4.   Akaka challenged the election results by filing a

complaint in this court on August 21, 2012.    Akaka named

Fred Housel (“Housel”), Nicole Lowen (“Lowen”) and Bucky Leslie

                                 -2-
(“Leslie”), her Democratic Party opponents, as defendants.     She

also named Scott Nago (“Nago”), the Chief Election Officer for

the State of Hawai#i, Governor Abercrombie, Jamae Kawauchi

(“Kawauchi”), the County Clerk for the County of Hawai#i, and the

Office of the Clerk, Hawai#i County (“Hawai#i County Clerk’s

Office”), as defendants.

          5.   The complaint alleges that (a) Governor

Abercrombie lacked authority under HRS § 128-10(6) to extend the

polling hours, (b) the ballots for district 6 were “miscounted .

. . or otherwise mishandled” by the Office of Elections, the

Chief Election Officer, the Hawai#i County Clerk’s Office, and

the Hawai#i County Clerk, and (c) the late opening of the polls

contributed to “massive voting conduct irregularities[,] which

resulted in the wrongful extension of the statutory hours of

voting which then caused invalid ballots and votes to be cast and

inextricably intermingled with valid ballots and votes cast.”

Akaka contends that the claimed events could cause or could have

caused a difference in the election results.

          6.   Akaka seeks judgment from this court (a) ordering

a new Democratic Party election for the office of state

representative, district 6, (b) ordering a manual recount of the

ballots for the office of state representative, district 6, and

(c) ordering payment of her attorneys’ fees.

          7.   Defendants Nago and Governor Abercrombie moved to


                               -3-
dismiss the complaint as untimely and for failure to state a

claim upon which relief can be granted.

           8.    Defendants Kawauchi and the Hawai#i County

Clerk’s Office also moved to dismiss the complaint as untimely

and for failure to state a claim upon which relief can be

granted.

           9.    Defendant Lowen joined in the motions filed by

Nago, Governor Abercrombie, Kawauchi and the Hawai#i County

Clerk’s Office

           10.   Neither Defendants Housel nor Leslie have filed

responses and there is no indication in the record demonstrating

that they were served with the complaint and summons.    Responses

from Housel and Leslie, however, are not necessary to the

resolution of Akaka’s complaint.

                         CONCLUSIONS OF LAW

                                 I.

           1.    HRS § 11-173.5(a) (2009) provides that a complaint

challenging a primary election “shall be filed in the office of

the clerk of the supreme court not later than 4:30 p.m. on the

sixth day after a primary [] election[.]”

           2.    “‘Where the language of a statute is plain and

unambiguous that a specific time provision must be met, it is

mandatory and not merely directory.’”    Tataii v. Cronin, 119

Hawai#i 337, 339, 198 P.3d 124, 126 (2008) (quoting Coon v. City


                                 -4-
and County of Honolulu, 98 Hawai#i 233, 255, 47 P.3d 348, 370

(2002)).

           3.     “‘In determining whether a statute is mandatory or

directory, the intent of the legislature must be ascertained.’”

Tataii v. Cronin, 119 Hawai#i at 339, 198 P.3d at 126 (quoting

State v. Himuro, 70 Haw. 103, 105, 761 P.2d 1148, 1149 (1988)).

           4.     The “sixth day” provision of HRS § 11-173.5(a) is

mandatory and this construction is consistent with the

legislature’s objective to enable the State of Hawai#i Office of

Elections to expeditiously administer elections.           See Sen. Conf.

Comm. Rep. No. 17-74, 1974 Senate Journal at 770.

           5.     HRS § 1-29, which governs the computation of time

for any acts prescribed by law, such as HRS § 11-173.5, provides:
                 The time in which any act provided by law is to
           be done is computed by excluding the first day and
           including the last, unless the last day is a Sunday or
           holiday and then it is also excluded. When so
           provided by the rules of court, the last day also
           shall be excluded if it is a Saturday.

           6.     Hawai#i Rules of Appellate Procedure (“HRAP”) Rule

26(a) provides:
                 In computing any period of time prescribed by
           these rules, an order of court, or any applicable
           statute, the day of the act, event, or default from
           which the designated period of time begins to run
           shall not be included. The last day of the period
           shall be included, unless it is a Saturday, Sunday, or
           a legal holiday, in which event the period extends
           until the end of the next day that is not a Saturday,
           a Sunday, or a legal holiday. When the period of time
           prescribed or allowed is less than 7 days, any
           intervening Saturday, Sunday, or legal holiday shall
           be excluded in the computation.

           7.     Under HRS § 602-11 (1993), the court is

                                    -5-
empowered to promulgate court rules, but it does not have the

power to make rules that “abridge, enlarge, or modify [. . .] the

jurisdiction of any of the courts, nor affect any statute of

limitations.”

          8.    Therefore, HRAP Rule 26(a)’s “less than 7 days”

language does not extend the filing deadline under HRS § 11-173.5

and the deadline for filing an election challenge was

Monday, August 20, 2012.   Akaka’s complaint is untimely.

                               II.

          9.    Even if Akaka had timely filed her complaint, it

fails to state claims upon which relief can be granted.

          10.   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).

          11.   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,


                                -6-
119 Hawai#i at 339, 198 P.3d at 126; 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).

          12.   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.

          13.   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.

          14.   Taking Akaka’s allegations as true and viewing

them in the light most favorable to her, it appears that Akaka

can prove no set of facts that would entitle her to relief

because Akaka has failed to present specific acts or actual

information of mistakes, error or irregularities sufficient to

change the results of the election.

          15.   The Election Proclamation’s typographical error in

referring to HRS § 128-10(6) is harmless because the Governor has

authority to extend voting hours in emergency situations pursuant

to HRS § 128-9(6), and this does not amount to actual information


                                -7-
of mistakes, errors or irregularities sufficient to change the

primary election results for the office of state representative,

district 6.

          16.   Moreover, allegations that (a) miscounting

of votes due to a discrepancy in the number of ballots, and (b)

the late opening of the polls, which resulted in the governor

extending the voting hours and campaigns contacting supporters,

many of whom were “likely supporters of [defendant] Lowen rather

than [plaintiff] Akaka” and urging them to vote, all of which

could have caused a difference in the election results, do not

amount to actual information of mistakes, errors or

irregularities sufficient to change the primary election results

for the office of state representative, district 6.

          17.   According to HRS § 11-173.5(b), in a primary

election challenge, the supreme court has authority to decide

which candidate was nominated or elected.   Funakoshi v. King, 65

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

          18.   Under the circumstances of this case, Akaka is not

entitled to the remedy she seeks.

                             JUDGMENT

          Based upon the foregoing findings of fact and

conclusions of law, judgment is entered dismissing the complaint.

Nicole Lowen received the highest number of votes in the

Democratic Party race for the office of state representative,


                                -8-
district 6 in the primary election and shall advance to the

general election.

          The clerk of the supreme court shall forthwith serve a

certified copy of this judgment on the chief election officer and

the county clerk in accordance with HRS § 11-173.5(b).

          DATED: Honolulu, Hawai#i, August 31, 2012

                              /s/ Mark E. Recktenwald

                              /s/ Paula A. Nakayama

                              /s/ Simeon R. Acoba, Jr.

                              /s/ Sabrina S. McKenna

                              /s/ Richard W. Pollack




                               -9-
