                                                       Electronically Filed
                                                       Supreme Court
                                                       SCEC-XX-XXXXXXX
                                                       27-AUG-2018
                                                       10:42 AM



                          SCEC-XX-XXXXXXX

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                    RICHARD Y. KIM, Plaintiff,

                                vs.

    DAVID IGE, Democratic Candidate for Governor, 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 16, 2018 “Election

Objection” filed by Plaintiff Richard Y. Kim (“Plaintiff Kim”),

the August 21, 2018 motion to dismiss filed by Defendant David

Ige (“Defendant Ige), 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.   Defendant 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 alleges that Defendant Ige “bribed”

the Korean community and “comforted Korean voters’ heart[s]” in

March and April 2018 by visiting the United Korean Association of

Hawaii, meeting with the Association’s president and the Korean

community group, praising the Korean community, and donating $1

million to the Hawai#i Korean Cultural Center.    Plaintiff Kim

alleges that Defendant Ige and unnamed individuals conspired to

“influence voters in [the] Korean community” and “sway . . .

voters toward him” and, as a result, Plaintiff Kim “lost many of

his votes from [the] Korean community.”    Plaintiff Kim contends

that Defendant Ige committed election offenses in violation of

HRS §§ 19-3 (election fraud) and 19-6 (misdemeanors), the Federal

Election Campaign Act, 42 U.S.C.S. § 1985, the Hatch Act, and

other violations of federal law.

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           6.   Plaintiff Kim asks this court to disqualify

Defendant Ige as the Democratic Party gubernatorial candidate and

order a new primary election without Defendant Ige’s name on the

ballot.

           7.   Defendant Ige filed a motion to dismiss the

election objection for lack of subject matter jurisdiction over

the criminal allegations raised by Plaintiff Kim and for failure

to present any evidence of errors, mistakes, irregularities or

any other basis that could cause a difference in the election

result.

           8.   Plaintiff Kim filed an opposition to the motion to

dismiss.

                        CONCLUSIONS OF LAW

           1.   This court does not have original jurisdiction

over criminal prosecutions.   See HRS § 602-5(a) (2016).   As such,

this court lacks jurisdiction to prosecute the criminal offenses

alleged by Plaintiff Kim.

           2.   The election objection (e.g., complaint) fails to

state claims upon which relief can be granted.

           3.   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

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

          4.   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.

          5.   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.

          6.   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.

          7.   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).

          8.   Taking Plaintiff Kim’s allegations as true and

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

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Plaintiff Kim can prove no set of facts that would entitle him to

relief.    Plaintiff Kim’s conclusory, speculative allegations of

bribery and election fraud do not amount to “actual information

of mistakes or errors sufficient to change the results of the

election.”    The difference between Defendant Ige’s vote count

(124,572) and Plaintiff Kim’s vote count (1,576) is 122,996

votes.    Plaintiff Kim fails to present any evidence that the

alleged wrongdoings would result in a change of 122,996 votes in

his favor.

            9.    In a primary 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, 65 Haw. at

316, 651 P.2d at 914.

            11.   Disqualifying Defendant Ige pursuant to HRS §§ 19-

3, 19-4, and 19-6, and ordering a new primary election without

Defendant Ige’s name on the ballot are not remedies authorized by

HRS § 11-173.5(b).

                               JUDGMENT

            Based upon the foregoing findings of fact and

conclusions of law, judgment is entered in favor of Defendant

Ige.   Defendant David Y. Ige received the highest number of votes

and his name shall be placed on the ballot as the Democratic

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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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