                                                       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


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“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

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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

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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.



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            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).

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          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

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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

election.

            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




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