Cushnie v. Nago ( 2022 )


Menu:
  •                                                       Electronically Filed
    Supreme Court
    SCEC-XX-XXXXXXX
    15-DEC-2022
    08:44 AM
    Dkt. 26 FFCL
    SCEC-XX-XXXXXXX
    IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
    RALPH S. CUSHNIE, along with more than
    Thirty Voters, Plaintiffs,
    vs.
    SCOTT T. NAGO, personally and in his official capacity as
    Chief Election Officer, Office of Elections, State of Hawaiʻi,
    Defendant.
    ORIGINAL PROCEEDING
    FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
    (By: Nakayama, Acting C.J., McKenna, Wilson, Eddins JJ., and
    Circuit Judge Remigio, in place of Recktenwald, C.J., recused)
    On November 22, 2022, Plaintiffs Ralph S. Cushnie, along
    with more than Thirty Voters filed a complaint in this court
    entitled “Election Complaint pursuant to HRS § 11-172 and HRS
    § 11-174.5 and request for declaratory judgement pursuant to
    HRCP Rule 57” (complaint).   The named party Defendant is Scott
    T. Nago, personally and in his official capacity as Chief
    Election Officer, Office of Elections, State of Hawaiʻi.     On
    November 28, 2022, Defendant Scott T. Nago in his official
    capacity as the Chief Election Officer for the Office of
    Elections, State of Hawaiʻi (Office of Elections) filed a motion
    to dismiss the complaint for failure to state a claim or, in the
    alternative, for summary judgment.     Subsequently, Plaintiffs and
    the Office of Elections filed further briefing and documents on
    the motion.
    Upon consideration of the complaint and the documents
    attached, the motion to dismiss, and having heard this matter
    without oral argument, we enter the following findings of fact,
    conclusions of law, and enter judgment dismissing the complaint.
    FINDINGS OF FACT
    1.      Plaintiffs are over thirty voters who reside in the
    representative district number 17 on the island of Kauaʻi.
    2.   On November 22, 2022, Plaintiffs timely filed a
    complaint challenging the statewide elections results based on
    purported deficiencies in the audit practices of the Office of
    Elections.
    3.   The relief requested by the complaint is two-fold.
    First, Plaintiffs request a declaratory judgment that interprets
    HRS § 16-42 (2009).    Second, in the alternative, Plaintiffs
    request the court invalidate the general election on the grounds
    that a correct result cannot be ascertained because of a mistake
    or fraud on the part of the precinct officials.
    2
    4.   The complaint is devoid of any specific allegations as
    to how the audit procedure advocated by Plaintiffs would make
    any difference in the outcome of the election.
    5.   In addition to the claims outlined above, the
    complaint includes a claim for declaratory judgment against
    Defendant Scott T. Nago in his personal capacity.
    6.   On November 22, 2022, the return of service was filed
    to establish proof of service of the complaint and summons on
    “Scott T. Nago, in his official capacity only.”   To date, the
    Plaintiffs have not filed any return of service as to Defendant
    Scott Nago in his personal capacity.
    7.   The Office of Elections moved to dismiss the complaint
    for failure to state a claim upon which relief can be granted,
    in pertinent part, because the complaint lacks any specific
    allegations of errors, mistakes, or fraud that would change the
    outcome of the election result.
    CONCLUSIONS OF LAW
    1.   Pursuant to Hawaiʻi Rules of Evidence Rule 202(b)
    (2016), the request for judicial notice of the Hawaiʻi laws cited
    in the complaint is granted.
    2.   The issuance of a declaratory judgment on the
    interpretation of HRS § 16-42 is not within the original
    jurisdiction of the supreme court.    See HRS § 602-5 (2016).
    Therefore, this court is without original jurisdiction to
    consider the Plaintiffs’ claim for declaratory judgment.
    3
    3.     An election contest is instituted by filing a
    complaint in the supreme court setting forth “any cause or
    causes, such as but not limited to, provable fraud, overages, or
    underages, that could cause a difference in the election
    results.”    HRS § 11-172 (Supp. 2021).   “The complaint shall also
    set forth any reason for reversing, correcting, or changing the
    decisions of the voter service center officials or the officials
    at the counting center in an election using the electronic
    voting system.”    Id.
    4.     This court has held that a complaint challenging the
    results of an election pursuant to HRS § 11-172 fails to state a
    claim unless: (1) the plaintiffs demonstrate errors that would
    change the outcome of the election, Tataii v. Cronin, 119 Hawaiʻi
    337, 339, 
    198 P.3d 124
    , 126 (2008) (citing Akaka v. Yoshina, 84
    Hawaiʻi 383, 387, 
    935 P.2d 98
    , 102 (1997)), or (2) the plaintiffs
    demonstrate that the correct result cannot be ascertained
    because of a mistake or fraud on the part of the precinct
    officials.    Akaka, 84 Hawaiʻi at 387, 
    935 P.2d at 102
    ; see HRS
    § 11-174.5(b) (2009 & Supp. 2021).
    5.     “[A] complaint should not be dismissed for failure to
    state a claim unless it appears beyond doubt that the plaintiff
    can prove no set of facts in support of his claim which would
    entitle him to relief.”    Bank of Am., N.A. v. Reyes-Toledo, 143
    Hawaiʻi 249, 258, 
    428 P.3d 761
    , 770 (2018) (citation omitted).
    6.     “Our review is strictly limited to the allegations of
    the complaint, which we view in the light most favorable to the
    4
    plaintiff and deem to be true.”        Civ. Beat L. Ctr. for the Pub.
    Int., Inc. v. City & Cnty. of Honolulu, 144 Hawaiʻi 466, 474, 
    445 P.3d 47
    , 55 (2019) (citation and internal quotations omitted).
    However, “the court is not required to accept conclusory
    allegations on the legal effect of the events alleged.”       
    Id.
    (citation omitted).
    7.   Here, the complaint fails to allege any specific facts
    that the audit procedures requested would change the outcome of
    the election.   And, Plaintiffs’ belief and indefinite assertions
    that the requested audit could change the outcome of all
    statewide elections, by itself, is insufficient to state a claim
    under HRS §§ 11-172 and 11-174.5(b).       See Hawaiʻi Rules of Civil
    Procedure Rule 9(b) (2000) (“In all averments of fraud or
    mistake, the circumstances constituting fraud or mistake shall
    be stated with particularity.”).
    8.   Accordingly, Plaintiffs’ claim that the general
    election results statewide should be invalidated fails to state
    a claim upon which relief can be granted.       See Tataii, 119
    Hawaiʻi at 339-40, 
    198 P.3d at 126-27
     (“In the absence of facts
    showing that irregularities exceed the reported margin between
    the candidates, the complaint is legally insufficient because,
    even if its truth were assumed, the result of the election would
    not be affected.”).
    5
    JUDGMENT
    Based upon the foregoing findings of fact and conclusions
    of law, judgment is entered granting the motion to dismiss and
    dismissing the complaint as to all claims and parties.
    Dated:   Honolulu, Hawaiʻi, December 15, 2022.
    /s/ Paula A. Nakayama
    /s/ Sabrina S. McKenna
    /s/ Michael D. Wilson
    /s/ Todd W. Eddins
    /s/ Catherine H. Remigio
    6
    

Document Info

Docket Number: SCEC-22-0000703

Filed Date: 12/15/2022

Precedential Status: Precedential

Modified Date: 12/15/2022