Jane and John Doe Voters 1-47 v. Cachola ( 2018 )

Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
31-AUG-2018
02:17 PM
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
JANE AND JOHN DOE VOTERS 1-47, Plaintiffs,
vs.
ROMY CACHOLA, as an individual; 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, McKenna, Pollack, and Wilson, JJ.)
We have considered the August 21, 2018 amended
complaint filed by plaintiffs Jane and John Doe Voters 1-47
(“Plaintiffs”), the August 27, 2018 motion to dismiss, filed by
defendant Chief Election Officer Scott T. Nago (“Nago”), the
August 28, 2018 motion in opposition to the motion to dismiss
filed by Plaintiffs, the August 28, 2018 motion for discovery
filed by Plaintiffs, and the August 29, 2018 motion to dismiss
filed by defendant Romy Cachola (“Cachola”). 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. Cachola was one of two Democratic Party candidates
for the Office of State Representative, District 30 in the August
11, 2018 primary election.
2. The election result for the Democratic Party race
for the Office of State Representative, District 30 was as
follows:
Romy M. Cachola 920 (48.2%)
Ernesto M. (Sonny) Ganaden 869 (45.5%)
Blank Votes 120 (6.3%)
Over Votes 0 (0.0%)
3. Cachola is the Democratic Party candidate who
received the highest number of votes.
4. On August 20, 2018, Plaintiffs filed an election
complaint against Cachola and Nago. Plaintiffs contend that they
are “registered voters in Hawaii House of Representative District
30.” Plaintiffs filed a list of their names in-camera without
seeking permission or leave of this court to file their names in-
camera.
5. On August 21, 2018, Plaintiffs filed an amended
complaint to include counsel’s electronic signature, which was
missing from the original complaint. The amended complaint
alleges seven counts for relief:
• Count I Cachola’s violations of HRS § 19-3(4)
regarding election fraud by campaigning
in a medical facility in which he
exercises influence over voters’ receipt
of healthcare
• Count II Cachola’s violations of HRS § 84-12
regarding confidential information
• Count III Cachola’s violations of HRS § 11-137
regarding election fraud
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• Count IV Cachola’s violations of HRS § 19-6(8), a
misdemeanor election offense
• Count V Nago failed to preclude tampering in an
election pursuant to HRS § 11-4
• Count VI Nago failed to comply with the Help
America Vote Act of 2002 (HAVA)
• Count VII Cachola’s violations of the Health
Insurance Portability and Accountability
Act of 1996 (HIPAA)
6. As against Cachola, Plaintiffs allege that during
the course of the 2018 primary campaign, Cachola violated several
provisions of federal and state law –- voter fraud (HRS § 19-3),
illegal handling of absentee ballots (HRS § 19-6), asking to see
a ballot (HRS § 11-137), violations of HIPAA, and improper use of
confidential information by a legislator (HRS § 84-12). They
contend that Cachola “coerces and intimidates votes from a
vulnerable population” and “mingles his residence and campaign
‘headquarters’ with a medical clinic operated by his wife[.]”
They maintain that “[v]oter fraud is Cachola’s primary form of
political campaigning” -- he intimidates patients of his wife’s
medical clinic to vote for him in consideration of the condition
and continuing deliverance of medical care provided by his wife’s
medical practice, and goes house to house through the district
seeking absentee ballots in the final weeks of the campaign
season, just prior to the deadline to submit them to the Office
of Elections. Plaintiffs allege that Cachola has admitted to
these actions in past elections and, as a result, in 2013, the
legislature amended HRS § 19-6 (Act 235).
7. As against Nago, Plaintiffs allege that Nago
violated his duty under state law by failing to preclude vote
tampering in an election and failing to comply with federal
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requirements in conducting an election. They contend that by
accepting absentee ballots at any polling place on the day of the
election, allowing absentee voters to vote in-person if they
claimed a lost or destroyed ballot, and then tabulating dropped
off absentee ballots after 3:00 a.m. the day after the election,
the Office of Elections has invited voter fraud, vote tampering,
ballot stuffing, and disarray in the State of Hawai#i’s
elections. They further allege that Nago failed to comply with
the Help America Vote Act of 2002 § 402(b) by not having a
procedure for citizens to file a grievance regarding an election
crime under federal law. Plaintiffs claim that as a direct
consequence of Nago’s acts, they were victims of an illegal act
which changed the results of the election.
8. Plaintiffs ask this court to:
• order a briefing schedule and allow them the
opportunity to collect and present further evidence if
necessary;
• order a recount of the ballots of the Democratic Party
race for the Hawai#i House of Representative District
30;
• order a review of voter registration forms for District
30 to account for those individuals who are ineligible
to vote under Hawai#i law –- specifically, review
voting roles for individuals who were deceased prior to
the period in which he or she could have voted in
violation of HRS § 15-4(h)(2);
• order an investigation to review the 2018 voter
registration forms against the patient list of
Cachola’s wife’s medical practice, and review the
patient list of the medical practice with the
submission of “mail in drop off” ballots;
• order a review of the Office of Elections’ policy
regarding receipt, verification, and counting of “mail
in drop off” ballots to ensure that all votes cast
using this method were valid;
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• refer the allegations noted in the complaint to the
Hawai#i State Office of the Attorney General for
prosecution;
• refer the allegations noted in the complaint to the
Federal Bureau of Investigations or another appropriate
federal agency for violations of 18 U.S.C. § 594
regarding the intimidation of voters;
• refer the allegations noted in the complaint to the
State of Hawai#i Department of Health or another
appropriate agency for investigation regarding the use
of medical records and confidential patient information
for the purpose of political campaigning, and allowing
access of medical records and confidential patient
information to a third-party business associate who
uses the information for illegal purposes;
• refer the allegations noted in the complaint to the
Hawai#i State Ethics Commission; and
• disqualify and remove Cachola from the ballot in the
forthcoming State of Hawai#i general election.
9. Cachola filed a motion to dismiss the amended
complaint. Cachola challenges Plaintiffs’ standing to file the
election contest because their identities have been filed in-
camera and he is unable to determine whether they are at least
thirty registered voters from Hawai#i House District 30 to
satisfy the requirements of HRS § 11-172. Cachola also argues
that the amended complaint fails to present any evidence of
“errors, mistakes, or irregularities”, or any other such basis,
such as “provable fraud, overages, or underages” that could cause
a difference in the election result as mandated under HRS § 11-
172, and that the remedies requested by Plaintiffs are improper
and cannot be awarded by this court in a primary election
contest.
10. Nago filed a motion to dismiss the amended
complaint for lack of jurisdiction based on defective service of
the amended complaint, on the ground that this is not a typical
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election contest and does not fall within the court’s
jurisdiction for original proceedings to determine the results of
an election, and for failure to satisfy the statutory
requirements to prevail in an election contest. Nago further
argues that the remedies requested by Plaintiffs are improper and
cannot be awarded by this court in a primary election contest.
11. Nago contends that there are two defects with the
election complaint –- (1) the filing of Plaintiffs’ identities
in-camera; and (2) two omitted or misnumbered and sealed
declarations. Nago argues that Plaintiffs improperly sealed or
submitted for in-camera inspection the list of their names and,
therefore, he is unable to verify whether at least thirty of the
Plaintiffs are registered voters as required by HRS § 11-172.
Nago requests that if this court determines that it has
jurisdiction over the amended complaint and Plaintiffs are
permitted to proceed, that their status as voters be confirmed in
order to determine whether they can properly bring this complaint
pursuant to HRS § 11-172. In addition, Nago contends that he is
unable to review all the evidence because two declarations relied
on by Plaintiffs are either not included in the exhibits or are
misnumbered and sealed and, therefore, requests that the
declarations be stricken or unsealed and made available.
12. Plaintiffs filed a motion in opposition to the
motion to dismiss filed by Nago.
13. Concurrent with the filing of the motion in
opposition to the motion to dismiss, Plaintiffs filed a motion
for discovery, requesting that this court order Nago to provide
the court and the parties with discovery so that they may
ascertain the veracity of the allegations in the amended
complaint.
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CONCLUSIONS OF LAW
1. Pursuant to HRS § 11-172, an election contest may
be filed by “any candidate, or qualified political party
interested, or any thirty voters of any election district.”
2. Because Plaintiffs filed a list of their names in-
camera, neither Cachola nor Nago are able to verify whether
Plaintiffs comprise “thirty voters of any election district” to
satisfy the requirement of HRS § 11-172.
3. HRCP Rule 4(d), made applicable to this election
proceeding pursuant to HRCP Rule 81(b)(10), requires personal
service of the complaint and summons on an individual and, in the
case of a state official, service on the state official and the
State, through the attorney general:
(d) Same; Personal service. The summons and
complaint shall be served together. The plaintiff
shall furnish the person making service with such
copies as are necessary. Service shall be as follows:
(1) Upon an individual other than an infant or
incompetent person, (A) by delivering a copy of the
summons and of the complaint to the individual
personally or in case the individual cannot be found
by leaving copies thereof at the individual’s dwelling
house or usual place of abode with some person of
suitable age and discretion then residing therein or
(B) by delivering a copy of the summons and of the
complaint to an agent authorized by appointment or by
law to receive service of process.
. . . .
(4) Upon the State by delivering a copy of the
complaint to the attorney general of the State or to
the assistant attorney general or to any deputy
attorney general who has been appointed by the
attorney general.
(5) Upon an officer or agency of the State by
serving the State and by delivering a copy of the
summons and of the complaint to such officer or
agency. . . .
4. Plaintiffs name two defendants -– (1) Cachola, as
an individual; and (2) Nago, in his official capacity as the
Chief Election Officer.
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5. As to Cachola, HRCP Rule 4(d)(1) requires personal
service on Cachola. According to the return of service, a copy
of the amended complaint and summons was served on Cachola at 936
Kalihi Street, Honolulu, HI 96819, on August 22, 2018.
6. As to Nago, HRCP Rule 4(d)(4) and (5) require
personal service on Nago and the attorney general, assistant
attorney general, or deputy attorney general. According to the
return of service, a copy of the amended complaint and summons
was served on Nago, though general counsel Aaron H. Schulaner, at
800 Lehua Avenue, Pearl City, HI 96782, on August 27, 2018.
There is no indication in the record that a copy of the amended
complaint and summons was served on the attorney general,
assistant attorney general, or deputy attorney general as
required under HRCP Rule 4(d)(4) and (5).
7. The Office of the Attorney General, however,
received an electronic copy of the amended complaint upon its
filing on August 21, 2018, as reflected in the notice of
electronic filing. While electronic service is not deemed
personal service for purposes of a complaint, in this instance,
both Nago and the Attorney General timely received a copy of the
amended complaint and timely filed a response.
8. Although the procedure for service of the amended
complaint and summons was not strictly followed, neither Nago nor
Cachola were prejudiced.
9. Plaintiffs accuse Cachola of criminal actions and
request that the matter be referred to various law enforcement
agencies. These allegations are serious and may warrant further
investigation.
10. In a primary election challenge, however, HRS §
11-173.5(b) only authorizes the supreme court to “decide what
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candidate was nominated or elected.”
11. Therefore, an election contest of a primary
election pursuant to HRS § 11-173.5 is not the appropriate basis
to seek relief from these alleged criminal activities. See e.g.,
Haw. Const., art. III, § 12 (“Each house shall be the judge of
the elections, returns and qualifications of its own members and
shall have, for misconduct, disorderly behavior or neglect of
duty of any member, power to punish such member by censure or,
upon a two-thirds vote of all the members to which such house is
entitled, by suspension or expulsion of such member.”); HRS § 11-
173.5(b) (the sole remedy that the court may provide in an
election contest is “decid[ing] what candidate was nominated or
elected”).
12. Also, 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 Haw. 47, 48, 527 P.2d 236, 237 (1974).
13. 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.
14. 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
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of the primary election.” Elkins, 56 Haw. at 49, 527 P.2d at
237.
15. 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.
16. 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).
17. Taking Plaintiffs’ allegations as true and viewing
them in the light most favorable to them, it appears that
Plaintiffs’ allegations of election fraud or vote tampering are
not sufficient to constitute mistakes or errors that would change
the results of the election for the Office of State
Representative, District 30.8
18. This conclusion is further supported by the motion
for discovery, in which Plaintiffs acknowledge that they need
discovery from the Office of Elections so that the veracity of
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Although Plaintiffs submitted two declarations of Plaintiffs, the
declarations were submitted in-camera without the court’s permission and Nago
and Cachola have been unable to review the documents. Nevertheless, the
declarations as written do not provide sufficient information for this court
to grant the requested relief in a primary election contest filed pursuant to
HRS §§ 11-172 and 11-173.5. The declarations provide information from two
individuals regarding Cachola’s alleged actions and regarding absentee
ballots.
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their allegations may be verified and that they do not have a
duty to investigate crime. Plaintiffs’ allegations that Nago had
a system in place regarding absentee ballots that invited vote
tampering or denied access to filing of a complaint does not
amount to actual evidence proving voter fraud or other error or
misconduct that could have caused a difference between Cachola’s
vote count (920 votes) and Ganaden’s vote count (869 votes). It
appears that there is a system in place, governed by statute and
administrative rules, in the oversight, handling and processing
of absentee ballots on election day, as well as preventing the
possibility of double voting by absentee mail voters. See HRS
§ 15-9; HAR § 3-174-13; HRS § 16-43. Plaintiffs fail to
establish that the process undertaken by the Office of Elections
on the day of the primary election constitutes errors, mistakes,
or irregularities that would change the outcome of the election.
19. 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.
20. Ordering a briefing schedule and allowing
Plaintiffs to collect and present further evidence, ordering a
recount of the ballots in District 30, ordering the review of
voter registration forms for District 30 to verify that deceased
voters have not voted, ordering an investigation to review 2018
voter registration forms against the patient list of Cachola’s
wife’s medical practice, reviewing the Office of Elections’
policy regarding the receipt, verification and counting of mail
or drop off ballots to ensure all votes cast using this method
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were valid, and referring Plaintiffs’ allegations of wrongdoing
to the Office of the Attorney General, the Federal Bureau of
Investigation, the Department of Health, and the State Ethics
Commission are not remedies provided by HRS § 11-173.5(b) (“The
judgment shall decide what candidate was nominated or
elected[.]”).
21. Therefore, the amended complaint fails to state
claims upon which relief can be granted.
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered dismissing the amended
complaint. The dismissal of this election contest does not
preclude Plaintiffs from seeking other courses of action deemed
appropriate. Romy M. Cachola received the highest number of
votes and his name shall be placed on the ballot as the
Democratic Party candidate for the Office of State
Representative, District 30 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 31, 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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