                                                      Electronically Filed
                                                      Supreme Court
                                                      SCEC-12-0001039
                                                      27-DEC-2012
                                                      02:32 PM


                         SCEC-12-0001039

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                    DANIELLE ULULANI BEIRNE,
                            Plaintiff,

                                vs.

       RICHARD FALE, Republican Candidate, 47th District,
    BYU HAWAI#I PRESIDENT STEVEN C. WHEELWRIGHT; PCC PRESIDENT
   VAN ORGILL, HRI, CEO PRESIDENT ERIC BEAVER, AND THEIR STAFF
         AND EMPLOYEES AND STAR ADVERTISER WRITER PLEGE,
                            Defendants.


                       ORIGINAL PROCEEDING

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

          We have considered the election complaint filed by

plaintiff pro se Danielle Ululani Beirne (“Beirne”) on November

26, 2012, the motions to dismiss filed by defendants Brigham

Young University-Hawai#i (“BYU-Hawai#i”), Polynesian Cultural

Center (“PCC”) and Hawai#i Reserves, Inc. (“HRI”) and Richard

Fale (“Fale”) on December 7, 2012 and December 10, 2012,

respectively, the December 5, 2012 letter from Deputy Attorney

General Robyn B. Chun (“Chun”), the response memorandum filed by

Beirne on December 18, 2012, and the reply memorandum filed by
BYU-Hawai#i, PCC and HRI on December 18, 2012.    Having heard this

matter without oral argument and in accordance with HRS § 11-

174.5(b) (2009) (requiring the supreme court to “give judgment,

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.   Beirne was the Democratic party candidate for the

office of state representative, district 47 in the November 6,

2012 general election.

          2.   The election results for the race for the office

of state representative, district 47 were:

          Richard Fale                  4,381    (54.0%)
          D. Ululani Beirne             3,163    (39.0%)
          Blank Votes                     560    ( 6.9%)
          Over Votes                        4    ( 0.0%)

          3.   Beirne challenged the election results by filing a

complaint in the supreme court on November 26, 2012, which was

the twentieth day after the November 6, 2012 general election.

Beirne named her opponent, Fale, BYU-Hawai#i, PCC, HRI and

Honolulu Star-Advertiser (“Star-Advertiser”) writer Derrick De

Pledge as defendants.

          4.   The complaint alleges that Fale received more

votes because BYU-Hawai#i, PCC, HRI and the Star-Advertiser

“conspired and coerced to throw the electoral process in order

for . . . Fale to win” inasmuch as (a) BYU-Hawai#i allegedly

                                2
allowed Fale to register students on campus to vote, (b) BYU-

Hawai#i allegedly provided Fale several campus appearances but

did not give Beirne the same opportunity, (c) BYU-Hawai#i

allegedly transported students to the polls to vote using the

school’s vans and buses, (d) BYU-Hawai#i, PCC and HRI allegedly

encouraged their staff and employees to vote for Fale, (e) poll

observers and poll watchers allegedly contacted members of the

Church of Jesus Christ of Latter-day Saints, told them which

members did not vote, and asked them to drive those members to

the polls to vote, (f) Beirne was allegedly never offered access

to rallies held in Laie, and (g) the Star-Advertiser allegedly

published a letter one day before the election which stated that

Mitt Romney has the same values as the Laie Community.   The

complaint also alleges that the purported actions of BYU-Hawai#i

violate the school’s tax-exempt status.

           5.   BYU-Hawai#i, PCC and HRI moved to dismiss the

complaint for (a) failure to name Scott T. Nago (“Nago”), the

chief election officer, as a necessary and indispensable party,

and (b) failure to state a claim upon which relief can be

granted.

           6.   Fale moved to dismiss the complaint for failure to

state a claim upon which relief can be granted.

           7.   The Star-Advertiser did not file a response to the

complaint.


                                 3
           8.   By letter dated December 5, 2012, Deputy Attorney

General Chun informed the court that neither the Office of

Elections nor the State of Hawai#i were named defendants and,

therefore, they will not file a response unless ordered by the

court.   The letter further stated that the election challenge

lacks merit because “[Beirne] has not presented any evidence or

information of mistakes or errors sufficient to change the

result.”

           9.   In response to the motions to dismiss, Beirne

states that she did not name Nago or the Office of Elections

because she “do[es] not know the details of the law and [has]

followed it to the extent [she] could understand[.]”

                        CONCLUSIONS OF LAW

                                I.

           1.   HRS § 11-172 (2009) provides that a complaint

challenging an election “shall be delivered to the chief election

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

           2.   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[.]”

           3.   The election for representative of the State House

of Representatives is a State election administered by the chief

election officer.   The chief election officer, therefore, is a


                                 4
necessary and indispensable party who should have been named as a

defendant and served with a copy of the complaint and summons.

The record, however, is devoid of any evidence that the chief

election officer was named a defendant or served with a copy of

the complaint and summons.

          4.   Even if the chief election officer was named

or joined as a defendant and properly served, Beirne’s complaint

fails to state a claim upon which relief can be granted.

                                II.

          5.   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

them in the light most favorable to him or her; 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).

          6.   A complaint challenging the results of a general

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,

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,


                                 5
65 Haw. 312, 317, 651 P.2d 912, 915 (1982); Elkins v. Ariyoshi,

56 Haw. 47, 48, 527 P.2d 236, 237 (1974).

          7.    A plaintiff challenging a general 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.

          8.    Taking Beirne’s allegations as true and viewing

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

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

Beirne has failed to present specific facts or actual information

of mistakes, error or irregularities sufficient to change the

results of the general election or exceed the reported margin of

votes between her and Fale.

          9.    Allegations of (a) registering students to vote,

(b) allowing candidates on school campus, (c) transporting

students to polling places to vote, (d) encouraging employees to

vote for a particular candidate, (e) publishing political

articles, and (f) holding rallies for one candidate do not

demonstrate that the general election results for Beirne’s race

would have been different had these alleged events not occurred.

          10.   Moreover, an unsubstantiated statement about the

purported improper action of the district 47 poll observers and

poll watchers does not demonstrate actual fraud or mistakes by


                                   6
precinct officials that made it impossible to correctly determine

the election result.

          11.   None of Beirne’s allegations related to her

perceived inequities in the campaign process satisfy her burden

of demonstrating errors that would change the outcome of the

election for house of representatives, district 47.

                             JUDGMENT

          Based upon the foregoing findings of fact and

conclusions of law, judgment is entered dismissing the complaint.

          The clerk of the supreme court shall forthwith serve a

certified copy of this judgment on the chief election officer in

accordance with HRS § 11-174.5(b).

          DATED: Honolulu, Hawai#i, December 27, 2012.

                               /s/ Mark E. Recktenwald

                               /s/ Paula A. Nakayama

                               /s/ Simeon R. Acoba, Jr.

                               /s/ Sabrina S. McKenna

                               /s/ Richard W. Pollack




                                 7
