                                                      Electronically Filed
                                                      Supreme Court
                                                      SCEC-12-0000716
                                                      27-AUG-2012
                                                      02:17 PM




                       NO. SCEC-12-0000716

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                      MARTIN HAN, Plaintiff,

                               vs.

      JOEY MANAHAN, as an individual; ROMY M. CACHOLA; and
 SCOTT T. NAGO, Chief Election Officer for the State of Hawai#i,
              in his official capacity, 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 16, 2012 election

complaint filed by Plaintiff Martin Han and the declaration and

documents appended thereto, and the August 23, 2012 motion to

dismiss filed by Defendant Scott Nago.   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 Martin Han (“Han”) was one of three

candidates for the District 7 seat on the Honolulu City Council

in the August 11, 2012 first special election for the City and

County of Honolulu, which was held on conjunction with the

primary election.

          2.   The election results for the District 7 seat on the

Honolulu City Council were: (1) Joey Manahan: 7,123 votes

(51.0%); (2) Martin Han: 3,469 votes (24.8%); and (3) Lillian

Hong: 1,784 votes (12.8%).

          3.   On August 16, 2012, Han filed a complaint

challenging the election results.     Han named Joey Manahan

(“Manahan”), his opponent in the election, Romy Cachola

(“Cachola”), the current District 7 councilmember who was unable

to run for a seat on the Honolulu City Council due to term limits

but ran as a Democratic candidate for the District 30 seat in the

State House of Representatives, and Scott Nago (“Nago”), the

chief election officer for the State of Hawai#i, as defendants.

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

clerk for the City and County of Honolulu was named a defendant.

          4.    Han contends that Manahan received an increase in

votes by violating Hawai#i’s electioneering law (HRS § 11-132

(2009)) and “work[ing] together for votes” with Cachola.

          5.    Han alleges that: (a) Manahan violated HRS § 11-


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132 by displaying campaign posters less than two hundred feet

from two polling places on the day of the election; (b) Manahan

violated HRS § 11-132 by “purposefully le[aving] his campaign

signs within the 200 foot perimeter of two polling areas to

influence the approximately 40% undecided voters;” and (c) the

“unusually high amount of absentee ballots in Representative

District Precinct 30-02 . . . may indicate voter fraud in

District 7”.

          6.   Han seeks the following relief: (a) Judgment

ordering that Han’s name appear on the ballot for the November 6,

2012 general election; (b) Judgment ordering the Office of

Elections to review and compare the absentee voter names for the

absentee votes that Manahan and Cachola received from

Representative District Precinct 30-02; (c) Judgment ordering the

Office of Elections to review the absentee ballots for the

absentee votes that Manahan and Cachola received from

Representative District Precinct 30-02 for actual signatures

compared to an “X” marking; (d) Judgment ordering that the

absentee voters from Representative District Precinct 30-02 who

voted for Manahan and Cachola be interviewed “to determine if

their ballots were handled correctly or if there was any coercion

by any public official or persons acting on behalf of a public

official;” (e) Judgment ordering that the absentee ballots from

Representative Precinct 32-02 be reviewed and recounted; (f)


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Judgment finding that Manahan and Nago violated HRS § 11-132; and

(g) “[O]ther judicial determinations and orders necessary to

effectuate Defendant Manahan and Defendant Nago’s responsibility

in the violation of HRS § 11-132.”

          7.    Defendant Nago moved to dismiss the complaint for

failure to name a necessary and indispensable party and failure

to state a claim upon which relief can be granted.

          8.    Defendants Manahan and Cachola were served with the

complaint and summons on August 24, 2012 and August 25, 2012,

respectively.   The time for them to respond has not yet expired

but neither response is necessary to the resolution of the

election complaint.

                         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.    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.    An election for councilmember for the Honolulu City

Council 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 is, therefore, a necessary and indispensable


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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 and served with a copy of the complaint and

summons.

           4.    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.

           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 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).

           6.   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,


                                 -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 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.

           8.    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.

           9.    Taking Han’s allegations as true and viewing them

in the light most favorable to him, it appears that Han can prove

no set of facts that would entitle him to relief inasmuch as Han

has failed to present specific acts or “actual information of

mistakes or error sufficient to change the results of the

election.”

           10.    Possible electioneering at two polling places on

the day of the election, which Han admits were rectified by mid-

morning, does not amount to actual information of mistakes or


                                  -6-
errors sufficient to change the primary election results for the

District 7 seat on the Honolulu City Council.

           11.   The possibility that Manahan’s campaign signs

within the 200 foot perimeter of two polling areas may have

influenced approximately 40% of the undecided voters and the

possibility that an unusually high amount of absentee ballots in

Representative District Precinct 30-02 may indicate voter fraud

do not demonstrate that the results of the primary election for

the District 7 seat on the Honolulu City Council would have

changed.

           12.   According to HRS § 11-173.5(b), in a primary

election challenge, the supreme court has authority to decide

which candidate was nominated or elected.   Funakoshi v. King, 65

Haw. at 316, 651 P.2d at 914.

           13.   Under the circumstances of this case, Han is not

entitled to the remedies he seeks.

                              JUDGMENT

           Based upon the foregoing findings of fact and

conclusions of law, judgment is entered dismissing the complaint.

Joey Manahan received 51.0% of the votes for the District 7 seat

on the Honolulu City Council in the August 11, 2012 election and

is automatically deemed elected.

           The clerk of the supreme court shall forthwith serve a

certified copy of this judgment on the chief election officer and


                                 -7-
city clerk in accordance with HRS § 11-173.5(b).

          DATED: Honolulu, Hawai#i, August 27, 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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