Beirne v. Fale ( 2012 )

Electronically Filed
Supreme Court
SCEC-12-0001039
27-DEC-2012
02:32 PM
SCEC-12-0001039
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
DANIELLE ULULANI BEIRNE,
Plaintiff,
vs.
RICHARD FALE, Republican Candidate, 47th District,
BYU HAWAI#I PRESIDENT STEVEN C. WHEELWRIGHT; PCC PRESIDENT
VAN ORGILL, HRI, CEO PRESIDENT ERIC BEAVER, AND THEIR STAFF
AND EMPLOYEES AND STAR ADVERTISER WRITER PLEGE,
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 election complaint filed by
plaintiff pro se Danielle Ululani Beirne (“Beirne”) on November
26, 2012, the motions to dismiss filed by defendants Brigham
Young University-Hawai#i (“BYU-Hawai#i”), Polynesian Cultural
Center (“PCC”) and Hawai#i Reserves, Inc. (“HRI”) and Richard
Fale (“Fale”) on December 7, 2012 and December 10, 2012,
respectively, the December 5, 2012 letter from Deputy Attorney
General Robyn B. Chun (“Chun”), the response memorandum filed by
Beirne on December 18, 2012, and the reply memorandum filed by
BYU-Hawai#i, PCC and HRI on December 18, 2012. Having heard this
matter without oral argument and in accordance with HRS § 11-
174.5(b) (2009) (requiring the supreme court to “give judgment,
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. Beirne was the Democratic party candidate for the
office of state representative, district 47 in the November 6,
2012 general election.
2. The election results for the race for the office
of state representative, district 47 were:
Richard Fale 4,381 (54.0%)
D. Ululani Beirne 3,163 (39.0%)
Blank Votes 560 ( 6.9%)
Over Votes 4 ( 0.0%)
3. Beirne challenged the election results by filing a
complaint in the supreme court on November 26, 2012, which was
the twentieth day after the November 6, 2012 general election.
Beirne named her opponent, Fale, BYU-Hawai#i, PCC, HRI and
Honolulu Star-Advertiser (“Star-Advertiser”) writer Derrick De
Pledge as defendants.
4. The complaint alleges that Fale received more
votes because BYU-Hawai#i, PCC, HRI and the Star-Advertiser
“conspired and coerced to throw the electoral process in order
for . . . Fale to win” inasmuch as (a) BYU-Hawai#i allegedly
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allowed Fale to register students on campus to vote, (b) BYU-
Hawai#i allegedly provided Fale several campus appearances but
did not give Beirne the same opportunity, (c) BYU-Hawai#i
allegedly transported students to the polls to vote using the
school’s vans and buses, (d) BYU-Hawai#i, PCC and HRI allegedly
encouraged their staff and employees to vote for Fale, (e) poll
observers and poll watchers allegedly contacted members of the
Church of Jesus Christ of Latter-day Saints, told them which
members did not vote, and asked them to drive those members to
the polls to vote, (f) Beirne was allegedly never offered access
to rallies held in Laie, and (g) the Star-Advertiser allegedly
published a letter one day before the election which stated that
Mitt Romney has the same values as the Laie Community. The
complaint also alleges that the purported actions of BYU-Hawai#i
violate the school’s tax-exempt status.
5. BYU-Hawai#i, PCC and HRI moved to dismiss the
complaint for (a) failure to name Scott T. Nago (“Nago”), the
chief election officer, as a necessary and indispensable party,
and (b) failure to state a claim upon which relief can be
granted.
6. Fale moved to dismiss the complaint for failure to
state a claim upon which relief can be granted.
7. The Star-Advertiser did not file a response to the
complaint.
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8. By letter dated December 5, 2012, Deputy Attorney
General Chun informed the court that neither the Office of
Elections nor the State of Hawai#i were named defendants and,
therefore, they will not file a response unless ordered by the
court. The letter further stated that the election challenge
lacks merit because “[Beirne] has not presented any evidence or
information of mistakes or errors sufficient to change the
result.”
9. In response to the motions to dismiss, Beirne
states that she did not name Nago or the Office of Elections
because she “do[es] not know the details of the law and [has]
followed it to the extent [she] could understand[.]”
CONCLUSIONS OF LAW
I.
1. HRS § 11-172 (2009) provides that a complaint
challenging an election “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. The election for representative of the State House
of Representatives is a State election administered by the chief
election officer. The chief election officer, therefore, is a
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necessary and indispensable party who should have been named as a
defendant and served with a copy of the complaint and summons.
The record, however, is devoid of any evidence that the chief
election officer was named a defendant or served with a copy of
the complaint and summons.
4. Even if the chief election officer was named
or joined as a defendant and properly served, Beirne’s complaint
fails to state a claim upon which relief can be granted.
II.
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 the plaintiff’s allegations as true and view
them in the light most favorable to him or her; 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 general
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,
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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 general election must
show that he or she has actual information of mistakes or errors
sufficient to change the 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.
8. Taking Beirne’s allegations as true and viewing
them in the light most favorable to her, it appears that Beirne
can prove no set of facts that would entitle her to relief.
Beirne has failed to present specific facts or actual information
of mistakes, error or irregularities sufficient to change the
results of the general election or exceed the reported margin of
votes between her and Fale.
9. Allegations of (a) registering students to vote,
(b) allowing candidates on school campus, (c) transporting
students to polling places to vote, (d) encouraging employees to
vote for a particular candidate, (e) publishing political
articles, and (f) holding rallies for one candidate do not
demonstrate that the general election results for Beirne’s race
would have been different had these alleged events not occurred.
10. Moreover, an unsubstantiated statement about the
purported improper action of the district 47 poll observers and
poll watchers does not demonstrate actual fraud or mistakes by
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precinct officials that made it impossible to correctly determine
the election result.
11. None of Beirne’s allegations related to her
perceived inequities in the campaign process satisfy her burden
of demonstrating errors that would change the outcome of the
election for house of representatives, district 47.
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered dismissing the complaint.
The clerk of the supreme court shall forthwith serve a
certified copy of this judgment on the chief election officer in
accordance with HRS § 11-174.5(b).
DATED: Honolulu, Hawai#i, December 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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