                                                       Electronically Filed
                                                       Supreme Court
                                                       SCEC-12-0000722
                                                       28-AUG-2012
                                                       02:14 PM




                        NO. SCEC-12-0000722

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


        "HOPE FOR PUNA" HOPE LOUISE CERMELJ, Non-Partisan
    Candidate for the State House of Rep. Dist. 4, Plaintiff,

                                vs.

              County Clerk, JAMAE K.K. KAWAUCHI, and
            SCOTT NAGO, Chief Election Officer for the
                    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 20, 2012 election

complaint filed by Plaintiff Hope Louise Cermelj and the

documents appended thereto and submitted in support thereof, and

the August 24, 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 Hope Louise Cermelj (“Cermelj”) was one

of three candidates (two nonpartisan candidates and one

democratic candidate; there was no republican candidate) running

for the office of state representative, district 4 in the August

11, 2012 primary election.

          2.   The election results for the office of state

representative, district 4 were:

          NonPartisan Candidates
          Hope Louise Cermelj             35
          Moke Stephens                   32
          Blank Votes                     26
          Over Votes                       0

          Democratic Candidate
          Faye P. Hanohano             3,373
          Blank Votes                  1,358
          Over Votes                       0

          3.   On August 20, 2012, Cermelj filed a complaint

challenging the election results.      Cermelj named Jamae K.K.

Kawauchi (“Kawauchi”), the county clerk for the Island of

Hawai#i, and Scott Nago (“Nago”), the chief election officer for

the State of Hawai#i, as defendants.

          4.   Cermelj alleges that she “has been discriminated

against by freedom of speech and freedom of the press in [her]

non[]partis[]an run for State House, District 4.”

          5.   Cermelj seeks judgment from this court ordering a

recount of the votes received by Faye Hanahano, a recount of the

blank votes received for the Democratic party, and a recount of

the votes she and her opponent, Moke Stephens, received as the


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nonpartisan candidates.

          6.    Defendant Nago moved to dismiss the complaint for

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

          7.    Kawauchi did not file a response and there is no

indication in the record that she was served with the complaint

and summons.   A response from Kawauchi, however, is not necessary

to the resolution of Cermelj’s complaint.

                          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.    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).

          3.    A plaintiff challenging a primary election must

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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.

          4.   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.

          5.   Taking Cermelj’s allegations as true and viewing

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

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

inasmuch as Cermelj has failed to present specific acts or actual

information of mistakes, error or irregularities sufficient to

change the results of the election.

          6.   Alleged discrimination of freedom of speech and

freedom of the press does not amount to actual information of

mistakes, errors or irregularities sufficient to change the

primary election results for the office of state representative,

district 4.

          7.   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.

          8.   Under the circumstances of this case, Cermelj is

not entitled to the remedy she seeks.

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                            JUDGMENT

          Based upon the foregoing findings of fact and

conclusions of law, judgment is entered dismissing the complaint.

Because neither Hope Louise Cermelj nor Moke Stephens received

the minimum votes required under HRS § 12-41(b) (2009) for

nonpartisan candidates to advance to the November 6, 2012 general

election, and there was no republican candidate, Faye Hanahano,

the democratic candidate for the office of state representative,

district 4, is deemed elected.

          The clerk of the supreme court shall forthwith serve a

certified copy of this judgment on the chief election officer in

accordance with HRS § 11-173.5(b).

          DATED: Honolulu, Hawai#i, August 28, 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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