Dicks v. State of Hawai'i Office of Elections ( 2020 )

Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
18-AUG-2020
11:21 AM
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
KARL O. DICKS, Plaintiff,
vs.
STATE OF HAWAI#I, OFFICE OF ELECTIONS, Defendant.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
(By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ.,
and Circuit Judge To#oto#o, assigned by reason of vacancy)
We have considered the August 10, 2020 election
complaint filed by Plaintiff Karl O. Dicks and the August 14,
2020 motion to dismiss filed by Defendant State of Hawai#i,
Office of Elections. Having heard this matter without oral
argument and in accordance with HRS § 11-173.5(b) (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 Karl O. Dicks (“Dicks”) was one of
fifteen candidates for the City and County of Honolulu mayoral
seat in the August 8, 2020 primary election.
2. According to the primary election summary printout,
the election results for the City and County of Honolulu mayoral
seat were:
Rick Blangiardi 69,510 (25.3%)
Keith Amemiya 55,002 (20.0%)
Colleen Hanabusa 50,120 (18.2%)
Kym Marcos Pine 40,008 (14.5%)
Mufi Hannemann 26,975 ( 9.8%)
William (Bud) Stonebraker 17,710 ( 6.4%)
Choon James 5,520 ( 2.0%)
John Carroll 2,005 ( 0.7%)
Ho Yin (Jason) Wong 1,434 ( 0.5%)
Ernest Caravalho 1,136 ( 0.4%)
Audrey Keesing 822 ( 0.3%)
Micah Laakea Mussell 538 ( 0.2%)
David (Duke) Bourgoin 367 ( 0.1%)
Karl O. Dicks 358 ( 0.1%)
Tim Garry 311 ( 0.1%)
Blank Votes 3,046 ( 1.1%)
Over Votes 249 ( 0.1%)
3. Rick Blangiardi and Keith Amemiya received the
highest number of votes.
4. On August 10, 2020, Dicks filed a document
entitled “Notice of Appeal” in which he seeks to “object” and
“protest” the results of the 2020 primary election. Dicks
alleges, among other things, that there were “multiple
irregularities” with the primary election, because it was “poorly
planned,” “poorly managed,” and there was a “lack of proper
security for ballots.”
5. Dicks asks this court to nullify the results of
the primary election and allow all candidates who choose to
continue to the November general election to have their names
appear on the ballot.
2
6. Defendant State of Hawai#i, Office of Elections
Nago moves to dismiss the complaint on the grounds that the
complaint does not fall within this court’s jurisdiction for
original proceedings to determine the results of a primary
election and fails to state a claim upon which relief can be
granted.
CONCLUSIONS OF LAW
1. HRS § 11-172 provides that a copy of the complaint
for an election contest “shall be delivered to the chief election
officer or the clerk in the case of county elections.”
2. An election for mayor for the City and County of
Honolulu is a county election administered by the city clerk for
the City and County of Honolulu. The city clerk for the City and
County of Honolulu, therefore, is a necessary and indispensable
party who should have been named as a defendant and served with a
copy of the complaint. The record, however, is devoid of any
evidence that the city clerk for the City and County of Honolulu
was named a defendant or served with a copy of the complaint and
summons.
3. Even if the city clerk for the City and County
of Honolulu was named or joined as a defendant and served with a
copy of the complaint, the complaint fails to state claims upon
which relief can be granted.
4. 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
3
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).
5. A complaint challenging the results of a primary
election, special primary election, or county 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).
6. A plaintiff contesting such an 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.
7. It is not sufficient for a plaintiff challenging
an election to allege a poorly run and inadequately supervised
election process that evinces room for abuse or possibilities of
fraud. 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.
4
8. Taking Dicks’s allegations as true and viewing
them in the light most favorable to him, it appears that Dicks
can prove no set of facts that would entitle him to relief.
Dicks does not present specific acts or “actual information of
mistakes or error sufficient to change the results of the
election.”
9. In a primary election, special primary election,
or county election challenge, HRS § 11-173.5(b) authorizes the
supreme court to “decide what candidate was nominated or
elected.”
10. 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 v. King, 65
Haw. at 316, 651 P.2d at 914.
11. None of the remedies requested by Dicks are
authorized by HRS § 11-173.5(b).
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, the judgment is entered dismissing the
complaint. Rick Blangiardi and Keith Amemiya are the two
candidates who received the highest number of votes, and their
names shall be placed on the ballot for the November 2020 general
election.
The clerk of the supreme court shall also forthwith
serve a certified copy of this judgment on the chief election
5
officer and the county clerk of the City and County of Honolulu
in accordance with HRS § 11-173.5(b).
DATED: Honolulu, Hawai#i, August 18, 2020.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Fa#auuga To#oto#o
6