                                                      Electronically Filed
                                                      Supreme Court
                                                      SCEC-XX-XXXXXXX
                                                      18-AUG-2020
                                                      11:21 AM



                            SCEC-XX-XXXXXXX

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                       KARL O. DICKS, Plaintiff,

                                  vs.

        STATE OF HAWAI#I, OFFICE OF ELECTIONS, Defendant.


                          ORIGINAL PROCEEDING

        FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
   (By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ.,
    and Circuit Judge To#oto#o, assigned by reason of vacancy)

          We have considered the August 10, 2020 election

complaint filed by Plaintiff Karl O. Dicks and the August 14,

2020 motion to dismiss filed by Defendant State of Hawai#i,

Office of Elections.    Having heard this matter without oral

argument and in accordance with HRS § 11-173.5(b) (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 Karl O. Dicks (“Dicks”) was one of

fifteen candidates for the City and County of Honolulu mayoral

seat in the August 8, 2020 primary election.
          2.   According to the primary election summary printout,

the election results for the City and County of Honolulu mayoral

seat were:

          Rick Blangiardi                69,510    (25.3%)
          Keith Amemiya                  55,002    (20.0%)
          Colleen Hanabusa               50,120    (18.2%)
          Kym Marcos Pine                40,008    (14.5%)
          Mufi Hannemann                 26,975    ( 9.8%)
          William (Bud) Stonebraker      17,710    ( 6.4%)
          Choon James                     5,520    ( 2.0%)
          John Carroll                    2,005    ( 0.7%)
          Ho Yin (Jason) Wong             1,434    ( 0.5%)
          Ernest Caravalho                1,136    ( 0.4%)
          Audrey Keesing                    822    ( 0.3%)
          Micah Laakea Mussell              538    ( 0.2%)
          David (Duke) Bourgoin             367    ( 0.1%)
          Karl O. Dicks                     358    ( 0.1%)
          Tim Garry                         311    ( 0.1%)
               Blank Votes                3,046    ( 1.1%)
               Over Votes                   249    ( 0.1%)

          3.    Rick Blangiardi and Keith Amemiya received the

highest number of votes.

          4.    On August 10, 2020, Dicks filed a document

entitled “Notice of Appeal” in which he seeks to “object” and

“protest” the results of the 2020 primary election.   Dicks

alleges, among other things, that there were “multiple

irregularities” with the primary election, because it was “poorly

planned,” “poorly managed,” and there was a “lack of proper

security for ballots.”

          5.    Dicks asks this court to nullify the results of

the primary election and allow all candidates who choose to

continue to the November general election to have their names

appear on the ballot.



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           6.   Defendant State of Hawai#i, Office of Elections

Nago moves to dismiss the complaint on the grounds that the

complaint does not fall within this court’s jurisdiction for

original proceedings to determine the results of a primary

election and fails to state a claim upon which relief can be

granted.

                         CONCLUSIONS OF LAW

           1.   HRS § 11-172 provides that a copy of the complaint

for an election contest “shall be delivered to the chief election

officer or the clerk in the case of county elections.”

           2.   An election for mayor for the City and County of

Honolulu is a county election administered by the city clerk for

the City and County of Honolulu.       The city clerk for the City and

County of Honolulu, therefore, is a necessary and indispensable

party who should have been named as a defendant and served with a

copy of the complaint.   The record, however, is devoid of any

evidence that the city clerk for the City and County of Honolulu

was named a defendant or served with a copy of the complaint and

summons.

           3.   Even if the city clerk for the City and County

of Honolulu was named or joined as a defendant and served with a

copy of the complaint, the complaint fails to state claims upon

which relief can be granted.

           4.   When reviewing a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted, the

court must accept the plaintiff’s allegations as true and view

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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).

           5.   A complaint challenging the results of a primary

election, special primary election, or county 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 contesting such an 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.

           7.   It is not sufficient for a plaintiff challenging

an election to allege a poorly run and inadequately supervised

election process that evinces room for abuse or possibilities of

fraud.   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.

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            8.    Taking Dicks’s allegations as true and viewing

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

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

Dicks does not present specific acts or “actual information of

mistakes or error sufficient to change the results of the

election.”

            9.    In a primary election, special primary election,

or county election challenge, HRS § 11-173.5(b) authorizes the

supreme court to “decide what candidate was nominated or

elected.”

            10.   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.

            11.   None of the remedies requested by Dicks are

authorized by HRS § 11-173.5(b).

                               JUDGMENT

            Based upon the foregoing findings of fact and

conclusions of law, the judgment is entered dismissing the

complaint.    Rick Blangiardi and Keith Amemiya are the two

candidates who received the highest number of votes, and their

names shall be placed on the ballot for the November 2020 general

election.

            The clerk of the supreme court shall also forthwith

serve a certified copy of this judgment on the chief election


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officer and the county clerk of the City and County of Honolulu

in accordance with HRS § 11-173.5(b).

          DATED: Honolulu, Hawai#i, August 18, 2020.

                              /s/ Mark E. Recktenwald

                              /s/ Paula A. Nakayama

                              /s/ Sabrina S. McKenna

                              /s/ Michael D. Wilson

                              /s/ Fa#auuga To#oto#o




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