                                                      Electronically Filed
                                                      Supreme Court
                                                      SCEC-12-0000714
                                                      23-AUG-2012
                                                      11:00 AM




                       NO. SCEC-12-0000714

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I


              KHISTINA CALDWELL DEJEAN, Plaintiff,

                               vs.

    SCOTT NAGO, Chief Election Officer, Office of Elections,
     State of Hawai#i; and DAVID M. LOUIE, Attorney General,
                  State of Hawai#i, 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 August 14, 2012 election

complaint filed by Plaintiff Khistina Caldwell DeJean, the August

20, 2012 motion to dismiss or, in the alternative, for summary

judgment filed by Defendants David Louie and Scott Nago, the

August 20, 2012 answer filed by Bernice Mau, and the declaration

and/or exhibits appended to each.    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 Khistina Caldwell DeJean (“DeJean”) was

one of four candidates for the office of mayor of the City and

County of Honolulu in the August 11, 2012 primary election.

          2.   The election results for Honolulu mayor were:

(1) Benjamin Cayetano: 90,956 votes (44.1%); (2) Kirk Caldwell:

59,963 votes (29.1%); (3) Peter Carlisle: 51,101 votes (24.8%);

and (5) Khistina DeJean: 1,289 votes (0.6%).

          3.   On August 14, 2012, Plaintiff DeJean filed a

complaint challenging the primary election.    She alleges that (a)

some polling places in Hawai#i county opened late, (b) the media

discriminated against her when they did not “[o]pen [t]he [d]oor”

to minor children during a debate and excluded her from media

opportunities, (c) extending voting hours at the end of the day

does not help people who have to vote before going to work in the

morning, and (d) she received a “threat” to report for jury duty

within ten days.

          4.   Plaintiff DeJean seeks judgment from the supreme

court to remain on the ballot for the November 6, 2012 general

election as a candidate for Honolulu mayor.

          5.   Defendants David Louie, attorney general for the

State of Hawai#i, and Scott Nago, chief election officer for the

State of Hawai#i, move for dismissal of the complaint or, in the

alternative, for summary judgment for failure to present any

evidence of error, mistakes, irregularities or any other basis

that could cause a difference in the election results.

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            6.   Bernice Mau, city clerk for the City and County of

Honolulu, who was not named as a defendant in the complaint but

was served with the complaint and summons, denies the allegations

and prays that the court find that candidates Benjamin Cayetano

and Kirk Caldwell be placed on the general election ballot for

Honolulu mayor because any delay in opening the polling places in

Hawai#i county did not impact the Honolulu mayor’s race since

only voters in the City and County of Honolulu have the right to

vote for Honolulu mayor and neither she nor any of the defendants

had legal obligations to ensure that DeJean was provided

sufficient media opportunities.

                           CONCLUSIONS OF LAW

            1.   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).

            2.   The court’s consideration of matters outside the

pleadings converts a motion to dismiss into one for summary

judgment.    Foytik v. Chandler, 88 Hawai#i 307, 313, 966 P.2d 619,

625 (1998).      Summary judgment is appropriate where there is no

genuine issue as to any material fact and the moving party is

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entitled to a judgment as a matter of law.       Estate of Doe v. Paul

Revere Ins. Group, 86 Hawai#i 262, 269-270, 948 P.2d 1103, 1110-

1111 (1997).

           3.   A complaint challenging the results of a primary

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,

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 challenging a primary election must

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

sufficient to change the result.       Tataii v. Cronin, 119 Hawai#i

at 339, 198 P.3d at 126; Akaka v. Yoshina, 84 Hawai#i at 388, 935

P.2d at 103; Funakoshi v. King, 65 Haw. at 316-317, 651 P.2d at

915.

           5.   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.

           6.   The late opening of some of the polling places in

Hawai#i county on August 11, 2012 and the subsequent extension of

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voting hours in Hawai#i county do not amount to actual

information of mistakes or errors sufficient to change the

election results for Honolulu mayor.

          7.    The matters concerning the media’s alleged refusal

to allow minor children to attend a debate, the media’s alleged

exclusion of DeJean from media opportunities and an alleged

“threat” to report for jury duty within ten days do not

demonstrate that the results of the August 11, 2012 primary

election for Honolulu mayor would have changed.

          8.    In a primary election challenge, HRS § 11-173.5(b)

authorizes the supreme court to “decide what candidate was

nominated or elected.”   HRS § 11-173.5(b).

          9.    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.

          10.   Allowing Plaintiff DeJean to remain on the ballot

for the general election as a candidate for Honolulu mayor is not

a remedy authorized by HRS § 11-173.5(b).

          11.   There is no genuine issue of material fact related

to plaintiff DeJean’s election contest.

                              JUDGMENT

          Based upon the foregoing findings of fact and

conclusions of law, summary judgment is entered in favor of

defendants David Louie, attorney general for the State of

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Hawai#i, and Scott Nago, chief election officer for the State of

Hawai#i.   Benjamin Cayetano and Kirk Caldwell received the

highest number of votes for Honolulu mayor in the August 11, 2012

primary election and their names will be placed on the ballot for

the November 6, 2012 general election.

           The clerk of the supreme court shall forthwith serve a

certified copy of this judgment on the chief election officer and

county clerk in accordance with HRS § 11-173.5(b).

           DATED: Honolulu, Hawai#i, August 23, 2012.

                               /s/ Mark E. Recktenwald

                               /s/ Paula A. Nakayama

                               /s/ Simeon R. Acoba, Jr.

                               /s/ Sabrina S. McKenna

                               /s/ Richard W. Pollack




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