Akaka v. Housel ( 2012 )

Electronically Filed
Supreme Court
SCEC-12-0000725
31-AUG-2012
11:39 AM
NO. SCEC-12-0000725
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
KALEIHIKINA “KALEI” AKAKA,
Plaintiff,
vs.
FRED HOUSEL; NICOLE LOWEN; BUCKY LESLIE;
SCOTT NAGO, Chief Election Officer; STATE OF HAWAI#I
OFFICE OF ELECTIONS; JAMAE KAWAUCHI, County of Hawai#i Clerk;
OFFICE OF THE CLERK, HAWAI#I COUNTY; and
NEIL ABERCROMBIE, Governor of 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 (1) the August 21, 2012 election
complaint filed by Plaintiff Kaleihikina “Kalei” Akaka, (2) the
August 27, 2012 motion to dismiss filed by Defendants Scott Nago,
Chief Election Officer, and Governor Neil Abercrombie, and the
declaration and document appended thereto and submitted in
support thereof, (3) the August 27, 2012 motion to dismiss filed
by Defendants Jamae Kawauchi, County of Hawai#i Clerk, and the
Office of the Clerk, Hawai#i County, and (4) the August 28, 2012
joinder filed by Defendant Nicole Lowen. Having considered 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. Defendant Kaleihikina “Kalei” Akaka (“Akaka”) was
one of four Democratic Party candidates running for the office of
state representative, district 6, in the August 11, 2012 primary
election.
2. The election results for the Democratic Party race
for the office of state representative, district 6 were:
Nicole Lowen 1,067 (30.2%)
Kalei Akaka 1,022 (29.0%)
Bucky Leslie 734 (20.8%)
Fred Housel 461 (13.1%)
Blank Votes 243 ( 6.9%)
Over Votes 2 ( 0.1%)
3. On August 11, 2012, Governor Neil Abercrombie
(“Governor Abercrombie”) issued an Election Proclamation
extending the polling hours for the County of Hawai#i until 7:30
p.m. pursuant to Hawai#i Revised Statutes (“HRS”) § 128-10(6),
instead of HRS § 128-9(6).
4. Akaka challenged the election results by filing a
complaint in this court on August 21, 2012. Akaka named
Fred Housel (“Housel”), Nicole Lowen (“Lowen”) and Bucky Leslie
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(“Leslie”), her Democratic Party opponents, as defendants. She
also named Scott Nago (“Nago”), the Chief Election Officer for
the State of Hawai#i, Governor Abercrombie, Jamae Kawauchi
(“Kawauchi”), the County Clerk for the County of Hawai#i, and the
Office of the Clerk, Hawai#i County (“Hawai#i County Clerk’s
Office”), as defendants.
5. The complaint alleges that (a) Governor
Abercrombie lacked authority under HRS § 128-10(6) to extend the
polling hours, (b) the ballots for district 6 were “miscounted .
. . or otherwise mishandled” by the Office of Elections, the
Chief Election Officer, the Hawai#i County Clerk’s Office, and
the Hawai#i County Clerk, and (c) the late opening of the polls
contributed to “massive voting conduct irregularities[,] which
resulted in the wrongful extension of the statutory hours of
voting which then caused invalid ballots and votes to be cast and
inextricably intermingled with valid ballots and votes cast.”
Akaka contends that the claimed events could cause or could have
caused a difference in the election results.
6. Akaka seeks judgment from this court (a) ordering
a new Democratic Party election for the office of state
representative, district 6, (b) ordering a manual recount of the
ballots for the office of state representative, district 6, and
(c) ordering payment of her attorneys’ fees.
7. Defendants Nago and Governor Abercrombie moved to
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dismiss the complaint as untimely and for failure to state a
claim upon which relief can be granted.
8. Defendants Kawauchi and the Hawai#i County
Clerk’s Office also moved to dismiss the complaint as untimely
and for failure to state a claim upon which relief can be
granted.
9. Defendant Lowen joined in the motions filed by
Nago, Governor Abercrombie, Kawauchi and the Hawai#i County
Clerk’s Office
10. Neither Defendants Housel nor Leslie have filed
responses and there is no indication in the record demonstrating
that they were served with the complaint and summons. Responses
from Housel and Leslie, however, are not necessary to the
resolution of Akaka’s complaint.
CONCLUSIONS OF LAW
I.
1. HRS § 11-173.5(a) (2009) provides that a complaint
challenging a primary election “shall be filed in the office of
the clerk of the supreme court not later than 4:30 p.m. on the
sixth day after a primary [] election[.]”
2. “‘Where the language of a statute is plain and
unambiguous that a specific time provision must be met, it is
mandatory and not merely directory.’” Tataii v. Cronin, 119
Hawai#i 337, 339, 198 P.3d 124, 126 (2008) (quoting Coon v. City
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and County of Honolulu, 98 Hawai#i 233, 255, 47 P.3d 348, 370
(2002)).
3. “‘In determining whether a statute is mandatory or
directory, the intent of the legislature must be ascertained.’”
Tataii v. Cronin, 119 Hawai#i at 339, 198 P.3d at 126 (quoting
State v. Himuro, 70 Haw. 103, 105, 761 P.2d 1148, 1149 (1988)).
4. The “sixth day” provision of HRS § 11-173.5(a) is
mandatory and this construction is consistent with the
legislature’s objective to enable the State of Hawai#i Office of
Elections to expeditiously administer elections. See Sen. Conf.
Comm. Rep. No. 17-74, 1974 Senate Journal at 770.
5. HRS § 1-29, which governs the computation of time
for any acts prescribed by law, such as HRS § 11-173.5, provides:
The time in which any act provided by law is to
be done is computed by excluding the first day and
including the last, unless the last day is a Sunday or
holiday and then it is also excluded. When so
provided by the rules of court, the last day also
shall be excluded if it is a Saturday.
6. Hawai#i Rules of Appellate Procedure (“HRAP”) Rule
26(a) provides:
In computing any period of time prescribed by
these rules, an order of court, or any applicable
statute, the day of the act, event, or default from
which the designated period of time begins to run
shall not be included. The last day of the period
shall be included, unless it is a Saturday, Sunday, or
a legal holiday, in which event the period extends
until the end of the next day that is not a Saturday,
a Sunday, or a legal holiday. When the period of time
prescribed or allowed is less than 7 days, any
intervening Saturday, Sunday, or legal holiday shall
be excluded in the computation.
7. Under HRS § 602-11 (1993), the court is
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empowered to promulgate court rules, but it does not have the
power to make rules that “abridge, enlarge, or modify [. . .] the
jurisdiction of any of the courts, nor affect any statute of
limitations.”
8. Therefore, HRAP Rule 26(a)’s “less than 7 days”
language does not extend the filing deadline under HRS § 11-173.5
and the deadline for filing an election challenge was
Monday, August 20, 2012. Akaka’s complaint is untimely.
II.
9. Even if Akaka had timely filed her complaint, it
fails to state claims upon which relief can be granted.
10. 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).
11. 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,
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119 Hawai#i at 339, 198 P.3d at 126; 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).
12. 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.
13. 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.
14. Taking Akaka’s allegations as true and viewing
them in the light most favorable to her, it appears that Akaka
can prove no set of facts that would entitle her to relief
because Akaka has failed to present specific acts or actual
information of mistakes, error or irregularities sufficient to
change the results of the election.
15. The Election Proclamation’s typographical error in
referring to HRS § 128-10(6) is harmless because the Governor has
authority to extend voting hours in emergency situations pursuant
to HRS § 128-9(6), and this does not amount to actual information
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of mistakes, errors or irregularities sufficient to change the
primary election results for the office of state representative,
district 6.
16. Moreover, allegations that (a) miscounting
of votes due to a discrepancy in the number of ballots, and (b)
the late opening of the polls, which resulted in the governor
extending the voting hours and campaigns contacting supporters,
many of whom were “likely supporters of [defendant] Lowen rather
than [plaintiff] Akaka” and urging them to vote, all of which
could have caused a difference in the election results, do not
amount to actual information of mistakes, errors or
irregularities sufficient to change the primary election results
for the office of state representative, district 6.
17. 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.
18. Under the circumstances of this case, Akaka is not
entitled to the remedy she seeks.
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered dismissing the complaint.
Nicole Lowen received the highest number of votes in the
Democratic Party race for the office of state representative,
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district 6 in the primary election and shall advance to the
general election.
The clerk of the supreme court shall forthwith serve a
certified copy of this judgment on the chief election officer and
the county clerk in accordance with HRS § 11-173.5(b).
DATED: Honolulu, Hawai#i, August 31, 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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