                                                       Electronically Filed
                                                       Supreme Court
                                                       SCEC-XX-XXXXXXX
                                                       27-AUG-2020
                                                       09:44 AM
                          SCEC-XX-XXXXXXX

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                   BANNER S. FANENE, Plaintiff,

                                vs.

        STATE OF HAWAI#I OFFICE OF ELECTIONS, Defendant.



                        ORIGINAL PROCEEDING

               ORDER DISMISSING ELECTION COMPLAINT
   (By: Recktenwald, C.J., Nakayama, McKenna and Wilson, JJ.,
   and Circuit Judge Kuriyama, assigned by reason by vacancy)

          Upon consideration of Plaintiff Banner S. Fanene’s

election contest complaint filed on August 20, 2020, Defendant

State of Hawai#i Office of Elections’ motion to dismiss the

complaint, and the records and files herein,

          It appears that:

          1.   In the election contest complaint, Plaintiff asks

that all candidates listed on the primary election ballot be

listed on the general election ballot; and that the Chief

Election Officer be asked to submit his resignation.

          2.   HRS § 11-173.5, which governs primary election

contests, provides in relevant part that:
          [T]he court shall cause the evidence to be reduced
          to writing and shall not later than 4:30 p.m. on
          the fourth day after the return give judgment
          fully stating all findings of fact and of law.
          The judgment shall decide what candidate was
          nominated or elected[.]

          3.   Pursuant to the plain language of HRS § 11-173.5,

the only remedy this court can provide is to give a judgment as

to who was nominated or elected; and

          4.   The court cannot invalidate the primary election

and move everyone on the primary election ballot to the general

election ballot.   Nor can the court ask the Chief Election

Officer to resign.   See Funakoshi v. King, 65 Haw. 312, 314, 651

P.2d 912, 913 (1982) (the only relief to which a plaintiff is

entitled under HRS § 11-173.5 is to have the court declare the

name of the candidate to be nominated or elected).

          Therefore,

          IT IS HEREBY ORDERED that the motion to dismiss is

granted, and the complaint is dismissed.

          DATED: Honolulu, Hawai#i, August 27, 2020.

                                    /s/ Mark E. Recktenwald

                                    /s/ Paula A. Nakayama

                                    /s/ Sabrina S. McKenna

                                    /s/ Michael D. Wilson

                                    /s/ Christine E. Kuriyama




                                2
