Famera-Rosenzweig v. Kahele ( 2020 )

Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
02-OCT-2020
SCEC-XX-XXXXXXX 02:50 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
ASHLEY (NOELLE) FAMERA-ROSENZWEIG, Plaintiff,
vs.
KAIALI#I (KAI) KAHELE, Defendant.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
(By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ.,
and Circuit Judge Cataldo, assigned by reason of vacancy)
Upon consideration of the August 11, 2020 election
complaint filed by Plaintiff Ashley (Noelle) Famera-Rosenzweig,
the September 25, 2020 motion to dismiss filed by Respondent
Scott Nago, Chief Election Officer, and Plaintiff’s opposition to
the motion to dismiss the complaint, and having heard this matter
without oral argument, we set forth the following findings of
fact and conclusions of law and enter the judgment in accordance
with HRS § 11-173.5.
FINDINGS OF FACT
1. Plaintiff Ashley (Noelle) Famera-Rosenzweig
(Plaintiff) was one of four candidates in the democratic primary
election for the office of U.S. Representative, District II in
the August 8, 2020 primary election.
2. According to the final primary election summary
printout, the election results for the democratic primary
election for U.S. Representative, District II were:
Kahele, Kaiali#i (Kai) 100,841 (65.8%)
Evans, Brian 12,337 ( 8.1%)
Lee, Brenda L. Machado 10,694 ( 7.0%)
Famera, Noelle 7,992 ( 5.2%)
Blank Votes 20,904 (13.6%)
Over Votes 381 ( 0.2%)
3. Plaintiff contends Kahele’s voluntary assignment
with the National Guard prior to the election was a tactical move
on the part of Kahele and the Democratic Party to prevent all of
the candidates from participating in appearances and debates with
media networks. Due to the failure to participate im media
events, Plaintiff asks the court to:
(a) order the investigation of the Democratic Party
and Kahele;
(b) strike Kahele’s name from the ballot;
(c) investigate Candidate Brenda Lee and strike her
name from the ballot; and
(d) order a re-vote for the U.S. Representative,
District II democratic primary with only
candidates Famera-Rosenzweig and Brian Evans on
the ballot with the winner to move on to the
November 2020 general election.
4. In the motion to dismiss Plaintiff’s election
contest complaint, the Chief Election Officer contends the
complaint fails to state a claim upon which relief can be granted
and the relevant election contest statutes limit the supreme
court’s jurisdiction to deciding which candidate was nominated or
elected, and thus, the court cannot grant the relief requested.
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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 election ” See Han v.
Manahan, SCEC-XX-XXXXXXX, 2012 WL 3667313, (Haw. Aug. 27, 2012)
(concluding that in an election contest involving a county
election, the City Clerk was a necessary and indispensable party
who should have been named as a defendant and served with a copy
of the complaint).
2. The democratic primary election for the office of
the United States Representative, District II, is a state
election administered by the State Office of Elections. The
Chief Election Officer, therefore, is a necessary and
indispensable party who should have been named as a defendant.
The record shows the attorney for the Chief Election Officer was
served with a copy of the complaint, and this court issued an
order directing the Chief Election Officer to appear in this
matter to ensure the election contest is decided on the merits.
3. HRS § 11-172 provides in relevant part:
The complaint shall set 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.
4. A complaint challenging the results of an election
pursuant to HRS § 11-172 fails to state a claim unless the
plaintiff demonstrate errors that would change the outcome of the
election. Tataii v. Cronin, 119 Hawai#i 337, 339, 198 P.3d 124,
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126 (2008) (citing Akaka v. Yoshina, 84 Hawai#i 383, 387, 935
P.2d 98, 102 (1997)). See also Funakoshi v. King, 65 Haw. 312,
317, 651 P.2d 912, 913 (1982) (Difference in the election results
. . . mean[s] a difference sufficient to change the results of
the election).
5. [T]he [plaintiff] must show that he or she has
actual information of mistakes or errors
sufficient to change the result. The
[plaintiff] has the burden of demonstrating that
the specific acts and conduct of which [he or
she] complain[s] would have had the effect of
changing the results. 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.
. . .
It is not sufficient that the [plaintiff] points
to 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, 119 Hawai#i at 339-40, 198 P.3d at 126-27 (citing Akana
v. Yoshina, 84 Hawai#i at 387-388, 935 P.2d at 102-103 (internal
quotation marks, brackets and citations omitted).
6. Upon considering a complaint contesting a primary
election, a special primary election, or a county election, the
supreme court, pursuant to HRS § 11-173.5, “shall give judgment
fully stating all findings of fact and law” and “shall decide
what candidate was nominated or elected.”
7. Unlike HRS § 11-174.5, which governs contests for
general and special general elections and allows the court to
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invalidate an election, HRS § 11-173.5 does not provide for a
judgment that would invalidate the primary election and allow a
new election. See Funakoshi v. King, 65 Haw. 312, 315, 651 P.2d
at 912, 914. (the legislature only provided for the extraordinary
remedy of invalidating an election and allowing a new election
for general elections, special general elections, and special
elections).
8. Taking Plaintiff’s allegations as true and viewing
them in the light most favorable to her, it is evident she has
presented no set of facts that would entitle her to the requested
relief. She does not present specific acts or actual information
of mistake or error sufficient to change the election results.
Even if her claims regarding Kahele’s failure to participate in
media campaigns and debates are true, that alone is insufficient
to change the results of the election. See Tataii v. Cronin, 119
Hawai#i at 340, 198 P.3d at 127 (where the plaintiff makes no
showing that the defendant was under any obligation to debate
plaintiff, the refusal to debate was not an error, mistake or
irregularity that would change the result of the election).
9. The remedies sought by Plaintiff -- strike Kahele’s
name from the ballot; investigate Kahele and the democratic
party; nullify the votes for candidate Brenda Lee; and a re-vote
between Famera-Rosenzweig and Brian Evans -- are not authorized
by HRS § 11-173.5(b)
10. The Chief Election Officer’s motion to dismiss is
granted.
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JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, the judgment is entered dismissing the
complaint. Kaiali#i (Kai) Kahele is the candidate who received
the highest number of votes in the democratic primary election
for U.S. Representative, District II, and his name shall be
placed on the ballot as the democratic candidate in the November
2020 general election.
The clerk of the supreme court shall forthwith serve a
certified copy of this judgment on the chief election officer in
accordance with HRS § 11-173.5(b).
DATED: Honolulu, Hawai#i, October 2, 2020.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Lisa W. Cataldo
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