                                                         Electronically Filed
                                                         Supreme Court
                                                         SCEC-14-0001072
                                                         28-AUG-2014
                                                         11:34 AM



                          SCEC-14-0001072


           IN THE SUPREME COURT OF THE STATE OF HAWAI'I




               NELSON NAHINU WAIKIKI, JR., Plaintiff,


                                vs.


         SCOTT NAGO, Chief Election Officer, 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 22, 2014 election

complaint filed by Plaintiff Nelson N. Waikiki, Jr. and the

August 26, 2014 motion to dismiss filed by Defendant Scott Nago,

Chief Election Officer for the State of Hawai'i.   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 Nelson N. Waikiki, Jr. (“Waikiki”) was


one of seven candidates for the Maui County Mayoral seat in the

August 9, 2014 special primary election.


          2.    The election results for the Maui Mayoral seat


were: 


          Alan M. Arakawa                  17,980 (63.5%)

          Tamara (Tam) Paltin               3,405 (12.0%)

          Alana Kay                         1,398 (4.9%)

          Nelson Nahinu Waikiki, Jr.          818 (2.9%)

          Nelson E. (AZD) Mamuad              724 (2.6%)

          Orion (Ori) Kopelman                709 (2.5%)

          Beau E. Hawkes                      380 (1.3%)


          3.     Alan Arakawa and Tamara Paltin are the two


candidates who received the highest number of votes.


          4.    On August 22, 2014, the court received a one-page


letter from Waikiki. 


          5.     Waikiki appears to be contesting the results of

election for the Maui County mayoral race.    The subject of the

letter is titled “Re: Elections - Complainant Nelson N. Waikiki,

Jr. Maui Mayoral Candidate.”    In the letter, Waikiki states that

there has been “non-compliance, possible conspiracy, and

corruption by election officials” and that a “breakdown in the

system has occurred.”     He further states that he “believe[s] that

the Governor’s office, the AG, the Maui Mayor’s office and the

Elections Office conspired and corrupted the rights and trust of

the people of Hawai'i.”    He believes that the voters “have been

taken advantaged [and] bullied” due to 800 “misplaced” votes.

          6.     Waikiki requests a re-vote or a re-count. 


          7.     Defendant Nago moved to dismiss the complaint as


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


be granted. 


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                          CONCLUSIONS OF LAW


          1.    The complaint fails to state claims upon which


relief can be granted.


          2.    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).

          3.   A complaint contesting the results of a special

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).


          4.   A plaintiff contesting a special primary election

must show that he or she has actual information of mistakes or

errors sufficient to change the 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.   An election contest cannot be based upon mere


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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.


          6.    Taking Waikiki’s allegations as true and viewing


them in the light most favorable to him, it appears that Waikiki


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


inasmuch as Waikiki fails to present specific acts or “actual


information of mistakes or error sufficient to change the results


of the election.” 


          7.    In a special primary election challenge, HRS § 11­

73.5(b) (2009) authorizes the supreme court to “decide what


candidate was nominated or elected.” 


          8.   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 v. King, 65


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


          9.   None of the remedies sought by Waikiki are


authorized by HRS § 11-173.5(b).


                             JUDGMENT


          Based upon the foregoing findings of fact and


conclusions of law, judgment is entered dismissing the complaint. 


Alan M. Arakawa and Tamara (Tam) Paltin are the two candidates


who received the highest number of votes and will appear on the


ballot in the second special election pursuant to art. 7, § 7-2


of the Maui County Charter. 


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          The clerk of the supreme court shall process the


election contest without payment of the filing fee. 


          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 28, 2014.

                                     /s/ Mark E. Recktenwald

                                     /s/ Paula A. Nakayama

                                     /s/ Sabrina S. McKenna

                                     /s/ Richard W. Pollack

                                     /s/ Michael D. Wilson




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